UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE  LAW 

OF 


T 


REAL  PROPERTY 

AND 

OTHHK  INTHRHSTS  I\  LAND 


BY   HERBERT   THORNDIKE   TIFFANY 

Author  of  "The  Law  of  Landlord  and  Tenant." 


ENLARGED  EDITION 

IX   THREE   VOLUMES 

VOLUME  II 


cni(:.\(;c) 
CALLAGHAN  AND  COMPANY 
1920 


T 
T4473<e 

1^^ 


COPYRIGHT   1920 
BY 
HERBERT  THORNDIKE    TIFFANY. 


TABLE  OF  CONTENTS 


CHAPTEE  XII. 

EASEMENTS. 
I.     The  Natube  and  Classes  of  Easements. 

§  348.     Nature   of  an   easement. 
349.     Licenses. 

(a)  General  considerations. 

(b)  No  formality  necessary. 

(c)  Scope  of  license. 

(d)  Revocability  of  license. 

(e)  Mode  of  revocation. 

(f)  Termination  otherwise  than   by  revocation. 

(g)  Effect  of  termination, 
(h)  Assignment  of  license. 

§  350.  Easements  in  gross  and  appurtenant. 

351.  Light  and  air. 

352.  Waters  and  water  courses. 

353.  Artificial  water   courses   and   drains. 

354.  Support  of  land. 

355.  Support  of  buildings. 

356.  Party  walls. 

357.  Partition  fences. 

358.  Rights  of  way. 

359.  Pews  and  burial  rights. 

360.  Miscellaneous  easements. 

II.     The  Ckeatton  of  Easements. 

§   301.     Express  grant. 

3.02.     Express  reservation  or  exception. 
363.     "Implied"  grant  or  reservation. 

(a)  General  considerations. 

(b)  Of    easement     corresponding     to     pre-existing 

quasi  easement. 

(c)  Of  easement  of  necessity. 
§  364.     Prescription. 

365.  Acquisition  under  statute. 

366.  Estoppel. 

(V) 


77B92J 


VI 


Real  Peopekty. 


(a)  By  reference  to  non-existent  way. 

(b)  By  reference  to  plat. 

(c)  By  representation   or  acquiescence. 

III.  Rights  of  User. 

§  367.  Easements  created  by  grant. 

368.  Easements  created  by  prescription. 

369.  Effect  of  change  in  dominant  tenement. 

370.  Alterations  and  repairs. 

371.  Interference  with  user. 

IV.  Extinction  of  Easements. 

§  372.  Cessation  of  purpose  of  easement. 

373.  Excessive  user  of  land. 

374.  Unity  of  possession  or  title. 

375.  Application  of  land  to  public  use. 

376.  Express  release. 

377.  Abandonment. 

378.  Executed  license. 

379.  Adverse  user  of  land. 

380.  In  favor  of  innocent  purchasers. 


CHAPTER  XIII. 


381 
382 

OOO 

384 
385 
386 
387 


PROFITS  A  PRENDRE. 

General  considerations. 

Rights  in  gross  and  appurtenant. 

Rights  of  common. 

Rights  of  pasture. 

Mineral  rights. 

The  creation  of  rights. 

Apportionment  and  extinction. 


CHAPTER  XIV. 


§  388 
389 
390 
391 
392 

QQO 


COVENANTS  RUNNING  WITH  THE  LAND. 

General  considerations. 
The  running  of  benefits. 
The  running  of  burdens. 
Privity  of  estate. 
The  nature  of  the  covenant. 
Party  wall  agreements. 


Table  of   Contents.  vii 


CHAPTER  XV. 

RESTRICTIONS   ENFORCEABLE    IX   EQUITY. 

§  394.     General  considerations. 

395.  Character  of  agreement. 

396.  Theory  of  enforcement. 

3S7.  Persons  subject  to  restriction. 

398.  Notice. 

399.  Persons  entitled  to  enforce  restriction. 

400.  Existence  of  general  plan. 

401.  Defenses  to  enforcement. 


CHAPTER  XVI. 

RENT. 

402.  The  nature  of  rent. 

403.  What  may  be  reserved  as  rent. 

404.  Classes  of  rents. 

405.  Payments  which  are  not  properly  rent. 

406.  The  reservation  of  rent. 

407.  Transfer  of  rights  and  liabilities. 

408.  Death  of  person  entitled. 

409.  Time  at  which  rent  is  due. 

410.  Apportionment  as  to  time. 

411.  Amount  of  the  rent. 

412.  Apportionment  as  to  amount. 

413.  Extinction  or  suspension  of  rent. 

414.  Actions  for  rent 

415.  Distress  for  rent. 

416.  Lien  for  rent. 


CHAPTER  XVII. 

PUBLIC   RIGHT'S. 

§  417.  Highways. 

418.  Parks,  squares  and  commons. 

419.  Customary  rights. 

420.  Rights  of  fishing. 

421.  Rights  of  navigation. 


viii  Beal  Property. 

Part  Five. 
the  tkansfer  of  rights  in  land. 

CHAPTER  XVIII. 

TRANSFER  BY  THE  GOVERNMENT. 

§  422.  The  nature  of  the  government  title. 

423.  Grants  by  the  United  States. 

424.  Grants  by  the  States. 

425.  Spanish  and  Mexican  grants. 

426.  Patents. 

CHAPTER  XIX. 

VOLUNTARY  TRANSFER   INTER  VIVOS. 

I.  Classes  of  Conveyances. 

§  427.  Conveyances  at  common  law. 

428.  Conveyances  operating  under  the  Statute  of  Uses. 

429.  Conveyances  employed  in  the  United  States. 

430.  Quitclaim  deeds. 

431.  Surrender. 

432.  Conveyances    failing    to    take    effect    in    the    manner 

tended. 

II.  Form  And  Essentials  Of  A  Conveyance.  ^ 

§  433.  General  considerations. 

434.  Designation  of  the  parties. 

435.  Words  of  conveyance. 

436.  Exceptions  and  reservations. 

437.  Rules  of  construction. 

438.  Consideration. 

439.  Realty  of  consent. 

440.  Effect  of  alterations. 

III.  Description  Of  The  Land. 

§  441.  General  considerations. 

442.  Description  by  government  survey. 

443.  Reference  to  plat. 

444.  Monuments,  courses,  and  distances. 

445.  Boundaries  on  water. 

446.  Boundaries  on  ways. 


Table   of   Contents.  ix 

§  447.  Sufficiency  of  description. 

448.  Appurtenances. 

IV.  Covenants  For  Title. 

§  449.  General  considerations. 

450.  Covenant  for  seisin. 

451.  Covenant  for  right  to  convey. 

452.  Covenant  against  incumbrances. 

453.  Covenants  for  quiet  enjoyment  and  of  warranty 

454.  Covenant  for  further  assurance. 

455.  The  measure  of  damages. 

456.  Covenants  running  with  the  land. 

V.  ExECUTiox  OF  The  Conveyance. 

§  457.  Signing. 

458.  Sealing. 

459.  Witnesses. 

460.  Acknowledgment. 

461.  Delivery. 

462.  Conditional   delivery. 

463.  Acceptance. 

464.  Execution  by  agent. 

465.  Effect  of  execution — Subsequent  cancellation   or  return. 


CHAPTER  XX. 

TRANSFER   BY  WILL. 

466.  General  considerations. 

467.  Will  and  conveyance  distinguished. 

468.  Signing  by  testator. 

469.  Acknowledgment  and  publication. 

470.  Competency  of  witnesses. 

471.  Attestation  and  subscription. 

472.  Holographic  and  nuncupative   wills. 

473.  Undue  influence. 

474.  Lapsed  and  void  devises. 

475.  The  revocation  of  a  will. 

476.  Children  or  issue  omitted  from  will. 

477.  Revival  of  will. 

478.  Republication. 


Real  Peopeety. 


CHAPTER  XXI. 

DEDICATION. 

479.  Purposes  for  which  dedication  may  be  made. 

480.  No  particular  beneficiary  or  beneficiaries. 

481.  Who  may  effect  dedication. 

482.  Intention  to  dedicate. 

483.  Acceptance. 

484.  Dedication  distinguished  from  estoppel. 

485.  Qualified  and  conditional  dedication. 

486.  Effect  of  dedication. 


CHAPTER  XXII. 

INTESTATE   SUCCESSION. 

487.  General  considerations. 

488.  Descent  to  issue. 

489.  Surviving  consort  as  heir. 

490.  Parent  as  heir. 

491.  Descent  to  collateral  kindred. 

492.  Kindred  of  the  half  blood. 

493.  Representation. 

494.  Ancestral  lands. 

495.  Illegitimate  children. 

496.  Unborn  children. 

497.  Adopted  children. 

498.  Advancements. 

499.  Disinheritance. 


CHAPTER  XXIII. 

ADVERSE  POSSESSION  OF  LAND. 

500.  General  considerations. 

501.  Actual  and  visible  possession. 

502.  Exclusiveness  of  possession. 

503.  Hostility  of  possession. 

504.  Necessity  of  claim  of  title. 

505.  Mistake  in  locating  boundary. 

506.  Necessity  of  right  of  action. 

507.  Interruption  of  running  of  statute. 


Table   of   Contents.  xi 

§  508.  Tacking. 

509.  Personal  disabilities. 

510.  Exception  in  favor  of  the  sovereign. 

511.  Effect  as  vesting  and  divesting  title. 

512.  Extent  of  possession. 

513.  Particular  relations. 

(a)  Landlord  and  tenant. 

(b)  Trustee  and  cestui  que  trust. 

(c)  Licensor  and  licensee. 

(d)  Principal  and  agent. 

(e)  Grantor  and  grantee. 

(f)  Vendor  and  vendee. 

(g)  Life  tenant  and  remainderman, 
(h)  Cotenants. 

(i)  Mortgagor  and  mortgagee. 

(j)  Mortgagor  and  foreclosure  purchaser. 

(k)  Surviving  spouse  and  heirs. 

(1)  Parent  and  child. 

(m)     Husband  and  wife. 


CHAPTER  XXIV. 

PRESCRIPTION  FOR  INCORPOREAL  THINGS. 

514.  General   considerations. 

515.  Restrictions  on  application  of  doctrine. 

516.  Who  may  acquire  right  by  prescription. 

517.  What  rights  may  be  acquired  by  prescription. 

518.  Actual  user  necessary. 

519.  Adverse  character  of  user. 

520.  Necessity  of  claim  of  right. 

521.  Necessity  of  notice  to  landowner. 

522.  Necessity  of  exclusive  user. 

523.  Necessity  of  peaceable  user. 

524.  Necessity  of  right  of  action. 

525.  Continuity  of  user. 

52C.  Cessation  of  adverse  character. 

527.  Interruption  by  landowner. 

528.  Protests  and  interference  by  landowner. 

529.  Tacking. 

530.  Personal  disabilities. 

531.  Nature  and  extent  of  prescriptive  right. 

532.  Reciprocal  prescriptive  rights. 

533.  Prescription  for  highways. 

(a)     General   considerations. 


xii  Keal  Property. 

(b)  User  by  public  necessary. 

(c)  Adverseness  of  user. 

(d)  Necessity  of  claim  of  right. 

(e)  Necessity  of  notice  of  user. 

(f)  Continuity  of  user. 

(g)  Width  of  highway." 


CHAPTER  XXV. 

ACCRETION. 

534.  General  considerations. 

535.  As  rule  of  law  or  rule  of  construction. 

536.  Applicable  only  to  land  above  water. 

537.  Sudden  and  perceptible  changes. 

538.  Accretion  artificially  produced. 

539.  Land  appearing  in  place  of  land  disappearing. 

540.  Accretions  subject  to  existing  incumbrances. 

541.  Vested  right  in  future  accretions. 

542.  Accretions  to  island. 

543.  Apportionment  of  accretions. 

544.  Formation  of  new  islands. 


CHAPTER  XXVl. 

ESTOPPEL. 

§  545.     Assertion  of  after  acquired  title. 

(a)  General  considerations. 

(b)  Character  of  conveyance. 

(c)  Necessity  and  character  of  covenants. 

(d)  Cases  to  which  doctrine  inapplicable. 

(e)  Persons  bound  by  the  estoppel. 
§  546.     Estoppel  by  representation. 

547.     Improvements  by  oral  grantee. 


CHAPTER  XXVII. 


ESCHEAT  AND  FORFEITURE. 


§  548.     Escheat. 
549.     Forfeiture. 


Table  of  Contents.  xiii 


CHAPTER  XXVIII. 

TRANSFER  UNDER  JUDICIAL  PROCESS  OR  DECREE. 

§  550.  Sales  and  transfers  under  execution. 

551.  Sales  in  equity  at  the  instance  of  creditors. 

552.  Sales  of  decedent's  lands. 

553.  Sales  of  lands  of  infants  and  insane  persons. 

554.  Sales  and  transfers  for  purpose  of  partition. 

555.  Decrees  conferring  title. 

556.  Adjudications  of  bankruptcy. 


CHAPTER  XXIX. 

TRANSFER  FOR  NONPAYMENT  OF  TAXES. 

§  557.  Character  of  title  acquired. 

558.  Judgment  for  taxes. 

559.  Forfeiture  to  state. 

560.  Remedial  legislation. 


CHAPTER  XXX. 

APPROPRIATION   UNDER  EMINENT   DOMAIN. 

§  561.  The  power  to  appropriate. 

562.  Rights  subject  to  appropriation. 

563.  Mode  of  appropriation 

564.  Time  of  passing  of  title. 

565.  Cessation  of  public  use. 


CHAPTER  XXXI. 

PRIORITIES,  NOTICE  AND  RECORDING. 

566.  Priorities  apart  from  recording  acts. 

(a)  As  between  legal  interests. 

(b)  As  between  legal  and  equitable  interests. 

(c)  As  between  equitable  interests. 

567.  The  recording  acts. 


xiv  Real  Proppzktv. 

(a)  General  considerations. 

(b)  Instruments  capable  of  record. 

(c)  Unauthorized  record  of  instrument. 

(d)  Instruments  not  in  chain  of  title. 

(e)  Instruments  executed   prior  to   acquisition   of 

title. 

(f)  Instruments    executed    after    apparently    part- 

ing with  title. 

(g)  Instruments  recorded  after  parting  with  title, 
(h)     What  constitutes  recording. 

(i)      Time  allowed  for  recording, 
(j)      Mistakes  by  recording  officer, 
(k)     Index  to  records. 

(1)      Persons  affected  with  notice  by  record, 
(m)    Persons  entitled  to  assert  failure  to  record. 
§  568.     Notice  as  substitute  for  recording. 

569.  Information  putting  on  inquiry. 

570.  Notice  to  agent. 

571.  Notice  from  possession. 

(a)  General  considerations. 

(b)  Character  of  the  possession. 

(c)  Possession  consistent  with  record  title. 

(d)  Cotenant  in  possession. 

(e)  Joint  possession  or  occupation. 

(f)  Possession  by  tenant  under  lease. 

(g)  Continued  possession  by  grantor. 

§  572.     Notice  from  statements  in  instruments  of  title. 

573.  Actual  and  constructive  notice. 

574.  Purchasers  for  value. 

(a)  Valuable    consideration. 

(b)  Pre-existing  debt. 

(c)  Adequacy  of  consideration. 

(d)  Notice  before  payment. 

(e)  Notice  after  part  payment. 

(f)  Payment  by  note.  < 

(g)  Payment  without  acquiring  legal  title. 

§  575.  Purchasers  with  notice  from  purchasers  without  notice. 

576.  Purchasers  without  notice  from  purchasers  with  notice. 

577.  Purchasers  at  execution  sales. 

578.  Burden  of  proof. 

579.  Lis  pendens. 


REAL  PROPERTY 


CHAPTER  XII. 


EASEMENTS. 

I.  The  Nati-re  and  Classes  of  Easements. 

§   348.     Nature  of  an  easement. 
349.     Licenses. 

(a)  General  considerations. 

(b)  No  formality  necessary. 

(c)  Scope  of  license. 

(d)  Revocability  of  license. 

(e)  Mode  of  revocation. 

(f)  Termination  otherwise  than  by  revocation. 

(g)  Effect  of  termination, 
(h)  Assignment  of  license. 

§  350.  Easements  in  gross  and  appurtenant. 

351.  Light  and  air. 

352.  Waters  and  water  courses. 

353.  Artificial  water  courses  and  drains. 

354.  Support  of  land. 

355.  Support  of  buildings. 

356.  Party  walls. 
S57.  Partition  fences. 

358.  Rights  of  way. 

359.  Pews  and  burial  rights. 

360.  Miscellaneous  easements. 

II.  The  Creation  of  Easements. 

§  361.     Express  grant. 
3C2.     Express  reservation  or  exception. 
363.     "Implied"  grant  or  reservation. 

(a)  General  considerations. 

(b)  Of  easement  corresponding  to  pre-existing 

quasi  easement. 

(c)  Of  easement  of  necessity. 

2R.P.-1  (11^') 


1198  Heal.  Property.  [§  348 

§  364.     Prescription. 

365.  Acquisition  under  statute. 

366.  Estoppel. 

(a)  By  reference  to  non-existent  way. 

(b)  By  reference  to  plat. 

(c)  By  representation  or  acquiescence. 

III.  Rights  of  Useb. 

§  367.     Easements  created  by  grant. 

308.  Easements  created  by  prescription. 

309.  Effect  of  change  in  dominant  tenement. 

370.  Alterations  and  repairs. 

371.  Interference  with  user. 

IV.  Extinction  of  Easements. 

§  372.  Cessation  of  purpose  of  easement. 

373.  Excessive  user  of  land. 

374.  Unity  of  possession  or  title. 

375.  Application  of  land  to  public  use. 

376.  Express  release. 

377.  Abandonment. 

378.  Executed  license. 
3.79.  Adverse  user  of  land. 

380.     In  favor  of  innocent  purchasers. 

I.     The  Nature  and  Classes  of  Easements. 

§  348.  Nature  of  an  easement.  Aii  easement  in- 
volves primarily  the  privilege  of  doing  a  certain  class 
of  act  on  or  to  the  detriment  of  another's  land,  or  a 
right  against  another  that  he  refrain  from  doing  a 
certain  class  of  act  on  or  in  connection  mth  his  own 
land,  the  holder  of  the  easement  having,  as  an  integral 
part  thereof,  rights  against  the  members  of  the  commu- 
nity generally  that  they  shall  not  interfere  with  the 
exercise  or  enjoyment  of  the  easement. 

An  easement,  it  has  been  said,  never  involves  any 
active  duty  upon  the  owner  of  the  land  subject  to  the 
easement,  his  duty  being  merely  the  passive  one,  either 
of  not  interfering  with  a  certain  class  of  acts  by  the 
holder  of  the  easement,  or  of  himself  refraining  from 


§  348] 


Easements.  1199 


a  certain  class  of  acts.i  Occasionally,  however,  an 
interest  analogous  to  an  easement,  involving  a  duly 
of  an  active  character  upon  the  owner  of  land,  has  been 
recognized,  such  an  interest  being  sometimes  referred  to 
as  a  "spurious  easement." 

So  there  may  be  an  active  duty,  in  the  nature  of 
an  ersement,  to  maintain  a  fence,^  and  it  seems  that 
there  may  be  imposed,  upon  the  owner  of  land  subject 
to  an  easement,  an  active  duty  to  make  repairs,^'^  though 
this  is  most  unusual.^  In  Massachusetts,  there  has  even 
been  recognized  an  obligation,  not  contractual  in  charac- 
ter, to  contribute  to  the  cost  of  the  maintenance  of  a 

dam.'' 

Easements  are  sometimes  divided  into  affirmative 
and  negative.  An  affirmative  easement  is  one  which  au- 
thorizes the  doing  of  acts  which,  if  no  easement  existed, 
would  give  rise  to  a  right  of  action,  while  a  negative 
easement  is  one  the  effect  of  which  is  not  to  authorize 
the  doing  of  an  act  by  the  person  entitled  to  the  easement, 
but  merely  to  preclude  the  owner  of  the  land  subject 
to  the  easement  from  the  doing  of  an  act  which,  if  no 
easement  existed,  he  would  be  entitled  to  do.  In  other 
words,  an  affirmative  easement  involves  the  creation 
of  a  privilege,  while  a  negative  easement  involves  the 
withdrawal  of  a  privilege.''  As  examples  of  affirmative 
easements  may  be  mentioned  a  right  of  way,  a  right  to 
discharge  water  on  another's  land,  and  a  right  to  main- 
tain an  erection  thereon,  while  a  right  to  have  light  pass 

1.  Macclesfield  Highway  Board  Co.  v.  Staples,  164  Mass.  319,  29 
V.  Grant,  51  L.  J.  Q-  B.  357;  Tay-  L.  R.  A.  500,  41  N.  E.  441,  tHree 
lor  V.  Whitehead,  Dougl.  716;  judges  dissenting.  See  the  crit- 
Chauntler  v.  Robinson,  4  Exch.  icism  of  this  case  in  9  Harv.  Law 
;^g3  Rev.  at  p.  352. 

2.  Post    §  357.  7.  See  Professor  Wesley  N.  Hloh- 
3-4.    Rider   v.   Smith,   3   Term.  field's  article,  27  Yale  Daw  Jour- 
Rep.   766;    1   Wms.    Saund.    322c;  nal,   at   pp.    71,   72   in   which   the 
Gale,  Easements  (8th  Ed.)   487.  nature  of  an  easement  is  well  ex- 

5.  Post,  §  370.  plained. 

6.  Whittenton      Manufacturing 


1200  Real  Property.  [§  348 

to  one's  building  over  another's  land,  and  a  right  to 
have  one's  building  supported  by  such  land,  may  be 
mentioned  as  examples  of  negative  easements.  Affirma- 
tive easements  are  of  much  the  more  frequent  occur- 
rence.^ 

It  is  quite  frequently  stated  that  one  cannot  have 
an  easement  in  his  own  land,  and  this  is  no  doubt  ap- 
proximately true.  That  is,  if  one  has,  as  owner  of 
land,  the  right  of  possession,  any  use  which  he  makes 
thereof  he  makes  by  virtue  of  his  ownership,  and  not 
as  having  an  easement  therein.  But  it  may  happen 
that  he  is  an  owner  of  land  without  having  the  right 
of  possession,  as  for  instance,  when  he  has  an  estate 
in  reversion  or  remainder.  In  such  a  case  he  may  have 
an  easement  in  the  land,  although  he  is,  in  a  sense,  an 
owner  of  the  land.  So  one  who  has  an  undivided  in- 
terest in  land,  a  cotenant,  although  he  has  rights  of 
ownership  in  the  land,  may  also  have  an  easement 
therein  as  against  his  cotenant 's  undivided  interest  in 
the  land.^  And  one  may,  as  cotenant  of  certain  land, 
have  an  easement  in  land  owned  by  him  in  severalty.^" 

It  not  infrequently  occurs  that  two  or  more  persons 
have,  as  appurtenant  to  distinct  pieces  of  land  owned 
by  them,  exactly  similar  easements  in  a  single  piece  of 
land.  For  instance,  one  who  owns  several  adjoining 
lots  or  parcels  of  ground  may,  in  conveying  them  to 
different  persons,  grant  to  each  of  such  persons  a  right 
of  way  in  an  alley,  or  over  some  land  retained  by  him.^^ 
The  various  persons  thus  entitled  to  similar  easements 

8.  See  Gale,  Easements  (8tli  Goralski  v.  Kostuski,  179  111.  177, 
Ed.)    22.  70  Am.  St.  Rep.  98,  53  N.  E.  720; 

9.  Reed  v.  West,  16  Gray  Whitelaw  v.  Rodney,  212  Mass. 
(Mass.)  284;  Thompson  v.  Snyder,  540,  111  S.  W.  560;  City  Club  of 
14   N.   Max.   403,   94   Pac.   1014.  Auburn  v.  McGeer,  198  N.  Y.  160, 

10.  Bradley's  Fish  Co.  v.  Dud-  91  N.  E.  539,  92  N.  E.  105;  Ailes 
ley,  37  Conn.  136.  v.  Hallam,  69  W.  Va.  305,  71  S.  E. 

11.  See  e.   g.  Goodwin  v.   Bra-  273. 
gaw,    87    Conn.    31,    80    Atl.    668; 


^  349]  Easements.  1201 

are  sometimes  referred  to  as  tenants  in  common  of  an 
easement,  but  such  an  expression  is  inaccurate.  If 
the  right  of  user  vested  in  one  person  is  appurtenant 
to  one  tract,  and  the  right  of  user  vested  in  another 
person  is  appurtenant  to  another  tract,  there  are  two 
distinct  rights  of  user,  two  easements,  and  not  one  ease- 
ment. It  is  only  when  the  two  persons  have  an  ease- 
ment appurtenant  to  land  of  which  they  are  tenants  in 
common  that  they  can,  with  any  degree  of  accuracy,  be 
said  to  be  tenants  in  common  of  the  easement. 

Easements    distinguished    from    other    rights. 


Natural  rights^-  are,  as  operating  in  restriction  of  the 
use  of  another's  land,  occasionally  referred  to  as 
easements.  Such  rights  are  not,  however,  as  are  ease- 
ments, primarily  rights  as  regards  another's  land,  but 
are  merely  rights  incident  to  the  ownership  of  one's 
own  land.^" 

An  easement  is  to  be  distinguished  from  a  profit 
a  prendre,  which  involves  a  power  in  the  person  en- 
titled thereto  of  acquiring,  by  severance  and  removal 
from  another's  land,  a  part  of  the  soil  thereof,  or  some- 
thing growing  or  subsisting  in  the  soil.^^ 

An  easement  is  to  be  disting-uished  from  a  license, 
and  the  privilege  created  by  a  license.  The  nature  and 
characteristics  of  a  license  in  regard  to  land  constitute  a 
subject  as  to  which  there  have  been  numerous  decisions 
and  much  discussion.  The  following  section  will  be 
devoted  to  a  consideration  of  tlie  subject  of  licenses. 

§  349.     Licenses. (a)  General  nature.   A  license 

in  the  law  of  land,  is  oi'dinarily  a  permission  merely  to 
do  something  on  or  to  the  detriment  of  the  land  of  the 

12.  Ante,  chapter  11.  98   Cal.   161,   21    L.   R.  A.   593,   35 

13.  See,  as  to  the  distinction,  Am.  St.  Rep.  163,  32  Pac.  976; 
Backhouse  v.  Bonomi,  9  H.  L.  Cas.  Scriver  v.  Smith,  100  N.  Y.  471, 
503;    Pine    v.    City   of   New    Yorlt,  W.',  Am.  Rop.  224,  3  N.  E.  675. 

112  Fed.  98;  Gray  v.  McWilliams,  14.     /'"••</,  c.  13. 


1202  Real  Property.  [§  349 

giver  of  the  license,  the  licensor.  Occasionally  it  is  a 
permission  to  interfere  with  an  easement  or  profit 
a  prendre  belonging  to  the  licensor.  It  creates  a 
privilege  in  favor  of  the  licensee.  A  license,  it  has  been 
said,  "passeth  no  interest,  nor  alters  or  transfers  prop- 
erty in  anything,  but  only  makes  an  action  lawful  which 
without  it,  had  been  unlawful;  as,  a  license  *  *  * 
to  hunt  in  a  man's  park,  to  come  into  his  house,  are 
only  actions  which,  without  license,  had  been  unlaw- 
ful. "^^ 

In  so  far  as  an  easement  involves,  as  it  ordinarily 
does,  the  privilege  of  doing  or  not  doing  a  certain  class 
of  act  on  or  in  connection  with  another 's  land,  there  is  a 
superficial  resemblance  between  an  easement  and  the 
privilege  created  by  a  license.  The  distinction  between 
such  an  easement  and  a  license  privilege  lies  primarily  ^® 
in  the  fact  that  the  licensee  has  a  privilege  and  nothing 
more,  while  the  holder  of  an  easement  has  not  only  a 
privilege  but  also  rights  against  the  members  of  the 
community  in  general,  including  the  owner  of  the  land, 
that  they  refrain  from  interference  with  the  exercise 
or  enjoyment  of  the  privilege. ^'^  That  a  licensee,  as 
such,  has  no  right  of  action  against  a  third  person  ob- 
structing his  exercise  of  the  license  privilege  is,  it  is 
conceived,    beyond    question, ^^    in    spite    of    occasional 

15.    Thomas  v.  Sorrel,  Vaughan,  we    give    to    the    indefinite    term 

351;  Wood  V.  Leadbitter,  13  Mees.  &  'interest"    the    meaning    of    any 

W.  837.     See,  to  the  same  effect,  advantage  reoognized  by  the  law. 

Cook    V.    Stearns,    11    Mass.    533,  16.     See     Professor     Hohfield's 

480;    Sterling    v.    Warden,    51    N.  admirable    statement    in    this    re- 

H.  217,  12  Am.  Rep.  80;  Wiseman  gard,  in  27  Yale  Law  Journal  at 

V.    Lucksinger,    84    N.    Y.    31,    38  p.  66. 

Am.  Rep.  479;    Foster  v.  Brown-  17.     Post,  §  371. 

ing,  4  R.  I.  47,  67  Am.  Dec.  505;  18.    iSee    Whaley    v.    Laing,    2 

Thoemke  v.  Fiedler,  91  W^s.  386.  Hurl.  &  N.  476,  3  Hurl.  &  N.  675; 

The    statement    that    a    license  Hill  v.  Tupper,  2  Hurl.  &  C.  121; 

"passeth    no    interest,"    is    ques-  per      Bramwell,      B.,      Stockport 

tioned  by  Professor  Hohfield  (See  Water    Works    Co.    v.    Potter,    'A 

27  Yale  Law  Jour,  at  p.  95)   and  Hurl.  &  C.  300;   Heap  v.  Hartley, 

properly    so,    it    would    seem,    if  42  Ch.  Div.  461;  Clapp  v.  Boston, 


§  349] 


Easements. 


1203 


decisions  to  the  contrary.^^  That  lie  has  no  right  of  ac- 
tion against  the  lando^\^ler  himself  by  reason  of  such 
an  obstruction  by  the  latter,  is  involved  in  the  doctrine 
that  a  license  is  revocable  and  may  be  revoked  by  an 
act  on  the  part  of  the  licensor  indicating  an  intention  to 

revoke.^"  .        . 

A  license  may  be  to  do  any  of  an  almost  infinite 
variety  of  things  on  another's  land.  Thus,  one  may 
have  a  license  to  flood  land,^^^  to  erect  buildings  or  other 
structures  thereon,^!  ^^  pagg  on  the  land,"  to  maintain 
a    ditch,^^    to    cut   timber,^-'    to    use    land    for    railroad 


133  Mass.  367;  Fletcher  v.  Liv- 
ingston, 153  Mass.  388,  26  N.  E. 
1001;  Per  Loring,  J.,  in  Walker 
Ice  Co.  V.  American  Steel  &  Wire 
Co.,  185  Mass.  463,  70  N.  E.  937; 
Elliott  V.  Mason,  76  N.  H.  229,  81 
Atl.  701. 

"If  a  so  called  license  does  oper- 
ate to  confer  an  exclusive  right 
capable  of  being  protected  against 
a  stranger,  it  must  be  that  there 
is  more  than  a  license,  namely 
the  grant  of  an  interest  or  ease- 
ment." Pollock,  Torts  (6th  Ed.) 
367. 

19.  Case  v.  Weber,  2  Ind.  108, 
is  to  the  effect  that  one  having 
a  license  to  flow  water  through 
another's  land  has  a  right  of 
action  against  a  third  person 
who  obstructs  such  flow.  In  Paul 
V.  Hazleton,  37  N.  J.  Law,  106, 
and  Miller  v.  Greenwich,  62  N.  J. 
Law  771,  42  Atl.  735,  a  right  of 
action  in  favor  of  a  licensee 
against  a  third  person  was  sus- 
tained, on  the  theory  that  the 
licensee  had,  in  those  cases,  the 
exclusive  possession  of  the  land, 
or  of  a  part  thereof.  But  a  mere 
licensee  never  has,  it  seems,  pos- 
session   of    the   land.     London   & 


N.  "W.  Ry.  Co.  V.  Buckraaster,  L. 
R.  10  Q.  B.  70;  Taylor  v.  Cald- 
well, 3  Best  &  S.  826;  "Wells  v. 
Kingston-upon-Hull,  L.  R.  10  C. 
P.  402;  Lightwood,  Possession  of 
Land,  19.  One  who  has  posses- 
sion of  land  is  a  tenant,  not  a 
licensee.  1  Tiffany,  Landlord  & 
Ten,  §  7.  If  a  licensee  did  have 
possession,  his  right  of  action 
against  a  third  person  would  be 
based,  not  on  his  license,  but  on 
his  possession,  and  the  existence 
of  the  license  would  be  immate- 
rial as  against  others  than  the 
licensor. 

20.  i'ost,  §  349(d). 

20a.  Woodward  v.  Seely,  11 
111.  157,  50  Am.  Dec.  445. 

21.  Crosdale  v.  Lanigan,  129 
N.  Y.  604,  26  Am.  St.  Rep.  551; 
Malott  V.  Price,  109  Ind.  22; 
Eckert  v.  Peters,  55  N.  J.  Eq.  379, 
36  Atl.  49L 

22.  Forbes  v.  Balenseifer,  74 
111.  183. 

23.  Thoemke  v.  Fiedler,  91 
Wis.  386. 

24.  Callen  v.  Hilty,  14  Pa.  St. 
286.  See  cases  "»'(",  §  262,  note 
96. 


1204  Eeal  Property.  [§  349 

purposes.^^  A  very  common  form  of  license  is  a 
ticket  of  admission  whereby  one  is  permitted  to  enter 
on  another's  land  to  witness  a  spectacle,  or  for  some 
similar  purpose.-*^  A  contract  of  lodging  also,  giving 
not  an  exclnsive  right  to  a  part  of  the  premises,  but 
merely  a  right  to  enter  thereon  and  use  them  for 
certain  purposes,  is  in  the  nature  of  a  license,  and  not 
a  lease.-"  Likewise,  the  permission,  generally  tacit, 
given  to  an  employee  or  other  person  having  business 
with  the  owner  of  land,  to  enter  on  the  laud  for  the 
purpose  of  transacting*  such  business,  creates  the 
relation  of  licensor  and  licensee.^'^ 

(b)   No  formality  necessary.     No  formality  is 

necessary  to  a  license.  It  may  be  in  writing  or  oral,^' 
or  may  be  implied  from  the  relations  of  the  parties,  or 
from  the  conduct  of  the  landowner,  as  when  he  indicates 
an  assent  to  the  doing  of  certain  acts  on  his  land.-'^' 
So,  a  person,  by  opening  a  place  of  business,  licenses 
the  public  to  enter  therein  for  the  purpose  of  transact- 

25.  Beck  v.  Louisville,  N.  O.  works  Co.  v.  Great  Northern  Ry. 
&  T.  R.  Co.,  65  Miss.  172;  Har-  Co.,  21  Mont.  487,  54  Pac.  963; 
low  V.  Marquette,  H.  &  O.  R.  Co.,  Wilkins  v.  Irvine,  33  Ohio  St. 
41   Mich.   336.  138;     Pursell    v.    Stover,    110    Pa. 

26.  Wood  V.  Leadbitter,  13  St.  43,  20  Atl.  403;  Clark  v.  Glid- 
Mees.  &  W.  838;  McCrea  v.  Marsh,  den,  60  Vt.  702,  15  Atl.  358;  Bay 
12  Gray  (Mass.)  211.  See  14  View  Land  Co.  v.  Ferguson,  53 
Harv.  Law  Rav.  455.  Meisner  v.  Wash.  323,  101  Pac.  1093;  Lock- 
Detroit  B.  I.  &  W.  Ferry  Co.,  154  hart  v.  Geir,  54  Wis.  133,  11  N. 
Mich.  545,  118  N.  W.  14.  W.  245. 

27.  See  White  v.  Maynard,  111  30.  Occum  Co.  v.  A.  &  W. 
Mass.  250;  Wilson  v.  Martin,  1  Sprague  Mfg.  Co.,  34  Conn.  529; 
Denio  (N.  Y.)  602;  1  Tiffany,  Cutler  v.  Smith,  57  111.  252; 
La.idlord   &  Ten.,   §    8.  Noftsger  v.  Barkdoll,  148  Ind.  531, 

28.  Merriam  v.  City  of  Meri-  47  N.  E.  960;  Fischer  v.  John- 
den,  43  Conn.  173;  Cutler  v.  Smith  son,  106  Iowa,  181,  76  N.  W.  658; 
57  111.  252.  Harmon  v.   Harmon.   61   Ma.   222; 

29.  Occum  Co.  v.  A.  &  W.  Fletcher  v.  Evans,  140  Mass.  241, 
Sprague  Mfg.  Co.,  34  Conn.  529;  2  N.  E.  837;  Metcalf  v.  Hart,  3 
Owens  v.  Lewis,  46  Ind.  489,  15  Wyo.  513,  31  Am.  St.  Rep.  122, 
Am.  Rep.  295;  Great  Falls  Water-  31   Pac.   407. 


§  349] 


Easements. 


1205 


mg  business.'^ ^  And  a  license  to  do  certain  acts  on 
land  may  occasionally  be  inferred  from  the  owner's 
failure  to  object  to  the  doing  of  such  acts  thereon."^^ 
One  who  sells  to  another  things  which  are  upon  the 
land  impliedly  licenses  the  purchaser  to  come  upon  the 
land  to  get  the  chattels  within  a  reasonable  time.^^ 

(c)    Scope  of  license.    A  license  to  do  a  particu- 


lar act  necessarily  invoh^es  a  license  to  do  any  other 
act  essential  thereto.'*^  A  license  is  not,  however, 
ordinarily  construed  as  allowing  an  act  other  than  that 
named  unless  it  is  so  essential,  and  it  has  accordingly 
been  decided  that  a  license  to  place  a  structure  or 
appliance  on  one's  land  does  not  authorize  the  licensee 
to  jDlace  there  another  structure  or  appliance  in  case 
the  first  is  destroyed  or  becomes  useless.""'^  In  the 
case  of  a  license  to  do  some  particular  act,  not  con- 
tinuous in  its  nature,  the  act  must  be  done  within  a 
reasonable  time.'^^ 


31.  Gowen  v.  Philadelphia  Ex- 
change Co.,  5  Watts  &  S.  (Pa.) 
141;  Cutler  v.  Smith,  57  111.  252. 
See  Phillips  v.  Cutler,  89  Vt.  233, 
95   Atl.   487. 

32.  Occuni  Co.  v.  Sprague 
Mfg.  Co.,  34  Conn.  529;  Noftsger 
V.  Barkdoll,  148  Ind.  531,  47  N. 
E.  960;  Fischer  v.  Johnson,  106 
Iowa,  181,  76  N.  W.  658;  Smyr« 
V.  Kiowa  County,  89  Kan.  664, 
132  Pac.  181;  Sheehan  v.  Kasper, 
41  Nev.  27,  165  N.  W.  632;  Dris- 
coll  V.  Newark,  etc.,  Lime  Co., 
37  N.  Y.  637,  97  Am.  Dec.  761; 
Ewing  V.  Rhsa,  37  Ore.  583,  82 
Am.  St.  Rep.  783,  52  L.  R.  A. 
140,  62  Pac.  790;  Thayer  v.  Jar- 
vis,  44  Wis.  388;  Metcalf  v.  Hart, 
3  Wyo.  513,  31  Am.  St.  Rep.  122, 
31  Pac.  407.  See  Phillips  v.  Cut- 
ler,  89   Vt.   233,   95   Atl.   487. 

33.  Rogers  v.  Cox,  96  Ind.  157; 


Folsom  V.  Moore,  19  Me.  252; 
Barry  v.  Woodbury,  205  Me.  592, 
91  N.  E.  902.  And  see  post,  § 
349(d),  note  56. 

34.  Clark  v.  Vermont,  etc.  R. 
Co.,  28  Vt.  103;  Sterling  v.  War- 
den, 51  N.  H.  217,  12  Am.  Rep. 
80,  22  Am.  Dec.  410;  Woodruff  v. 
Beekman.  43  N.  Y.  Super.  Ct.  282; 
Sayles  v.  Bemis,  57  Wis.  315,  15 
X.   W.  432. 

35.  Hall  V.  Boyd,  14  Ga.  1; 
Carleton  v.  Redington,  21  X.  H. 
291;  Cowles  V.  Kidder,  24  X.  H. 
364,  57  Am.  Dec.  287.  But  see 
Southwestern  R.  Co.  v.  Mitchell, 
69  Ga.  114. 

36.  Parsons  v.  Camp,  11  Conn. 
525;  Gilmore  v.  Wilbur,  12  Pick. 
(Mass.)  120,  22  Am.  Dec.  410; 
Hill  V.  Hill.  113  Mass.  103,  18 
Am.  Rep.  455. 


1206 


Real.  Property. 


[§  349 


The  license  will  protect  the  agents  or  servants  of 
the  licensee  if  it  is  a  license,  not  for  pleasure,  but  to 
take  profits  from  the  land,"^"  or  if  the  act  authorized  is 
such  as  to  render  the  employment  of  others  to  do  it 
necessaiy  or  proper.^^ 

(d)    Revocability  of  license.     A  license  is,  as 

a  general  rule,  revocable  at  the  pleasure  of  the  licens- 
or,^^  and  the  fact  that  the  license  was  embodied  in 
an  instrument  under  seal  is  immaterial  in  this  regard.^*' 
The  fact,  moreover,  that  a  consideration  was  paid  for 
the   license    has    more   usually   been    regarded    as    not 


37.  Wickham  v.  Hawker,  7 
Mees.  &  W.  63. 

38.  Sterling  v.  Warden,  51  N. 
H.  217. 

In  Fletclier  v.  Evans,  140  Mass. 
,241,  2  N.  E.  837,  it  was  held  that 
if  the  heirs  at  law  gave  to  the 
widow  authority  to  erect  a  mon- 
ument upon  the  family  burial  lot, 
they  in  effect  gave  her  authority 
to  make  any  reasonable  contract 
for  a  monument,  and,  by  impli- 
cation, the  right  to  give  to  the 
contractor  a  license  to  enter  the 
lot  to  build  a  monument,  and  to 
remove  it  if  it  was  not  satisfac- 
tory or  if  she  did  not  pay  for  it. 

39.  Fentiman  v.  Smith,  4  East. 
107;  Wood  V.  Leadbitter,  13  Mees. 
&  W.  845;  DeHaro  v.  United 
States,  5  Wall.  (U.  S.)  599,  18  L. 
Ed.  681;  Profile  Cotton  Mills  v. 
Calhoun  Wlater  Co.,  189  Ala.  181, 
66  So.  50;  Wheeler  v.  West,  71 
Cal.  126,  11  Pac.  871;  Prince  v. 
Case,  10  Conn.  375,  27  Am.  Dec. 
675;  Fluker  v.  Georgia  Railroad 
&  Banking  Co.,  81  Ga.  461,  2  L. 
R.  A.  843,  12  Am.  St.  Rep.  328,  8 
S.  E.  529;  Wilmington  Water 
Power  Co.  v.  Evans,  166  111.  548, 


46  N.  E.  1083;  McBride  v.  Bair, 
134  Iowa,  661,  112  N.  W.  169; 
Elswick  V.  Ramey,  157  Ky.  639, 
163  S.  W.  751;  Seidensparger  v. 
Spear,  17  Me.  123,  35  Am.  Dec. 
234;  Rangeley  v.  Snowman,  115 
Me.  412,  99  Atl.  41;  Cook  v. 
Stearns,  11  Mass.  533;  Morse  v. 
Copeland,  2  Gray  (Mass.)  302; 
Hodgkins  v.  Farrington,  150  Mass. 
19,  5  L.  R.  A.  209,  15  Am.  St 
Rep.  168,  22  N.  E.  73;  Wbod  v. 
Michigan  (Air  Line  R,  Co.,  90 
Mich.  334,  51  N.  W.  263;  Johnson 
v.  Skillman,  29  Minn.  95,  43  Am. 
Rep.  192,  12  N.  W.  149;  Sterling 
V.  Warden,  51  N.  H.  217,  12  Am. 
Rep.  80;  Wiseman  v.  Lucksinger, 
•84  N.  Y.  31,  38  Am.  Rep.  479; 
Huff  V.  McCauley,  53  Pa.  St.  206, 
91  Am.  Dec.  203;  Geiger  v.  Mc- 
Miahon,  31  S.  Dak.  95,  139  N.  W. 
958;  Barsdale  v.  Hairston,  81  Va. 
764. 

40.  Wood  V.  Leadbitter,  13 
Mees.  &  W.  838;  Johnson  v.  Skill- 
man,  29  Minn.  95,  43  Am.  Rep. 
192;  East  Jersey  Iron  Co.  v. 
Wright,  32  N.  J.  Eq.  248;  Jackson 
v.  Babcock,  4  Johns.  (N.  Y.)  418; 
Smyth    V.    Brooklyn    Union    Ele- 


§  349] 


Easements. 


1207 


affecting  its  revocability,"^  but  there  are  to  be  found 
not  infrequent  statements  or  suggestions  to  the  con- 
trary, that  the  payment  of  a  consideration  may,  by 
itself'  or  in  connection  with  the  making  of  improve- 
ments,   operate   to   prevent    a   revocation.^-      How    the 


vated  R.  Co.,  121  App.  Div.  282, 
105  N.  Y.  Su'pp.  601;  Williamston 
etc.    R.    Co.    V.    Battle,    66    N.    C. 

540. 

That  the  license  is  evidenced  by 
an  unsealed  writing  is  a  fortiori 
immaterial  as  regards  the  power 
of  revocation.  Lehigh  &  N.  E. 
R.  Co.  V.  Bangor  &  P.  R.  Co.,  228 
Pa.  350,  77  Atl.  552. 

41.     Wood     V.     Leadbitter,     13 
Mees.    &    W.    838;    Workman    v. 
Stephenson,  —  Colo.  App.  — ,  144 
Pac.     1126;     St.     Louis     National 
Stock  Yards  v.  Wiggins  Ferry  Co., 
112    111.    384,    54    Am.    Rep.    543; 
Minneapolis    Mill    Co.    v.    Minne- 
apolis &  St.  L.  Ry.  Co.,  51  Minn. 
304,    53    N.    \V.    639;    Shippey    v. 
Kansas  City,  254  Mo.  1,  162  S.  W. 
137;    Dodge  v.    McClintock,  47   N. 
H.   383;    Wiseman   v.    Lucksinger. 
84    N.    Y.    31,    38    Am.    Rep.    479; 
Eckerson    v.    Crippen,    110    N.    Y. 
585,  1  L.  R.  A.  487,  18  N.  E.  443; 
Herndon  v.  Durham  &  S.  Ry.  Co , 
161  N.  C.  650,  77  S.  E.  683;  Bald- 
win   V.    Taylor,    166    Pa.    507,    31 
Atl.  250;  Caledonian  County  Gram- 
mar  School   V.   Kent,   86   Vt.   151, 
84  Atl.  26;  Thoemke  v.  Fiedler,  91 
Wis.  386,  64  N.  W.  1030.    And  see 
cases    cited    supra,    this    section, 
note  39. 

That  this  is  so  has  been  ire- 
quently  decided  in  cases  involv- 
ing the  rights  of  the  holder  of 
a  ticket  to  a  theater  or  other 
place  of  entertainment.     V.     )d  v. 


Leadbitter,    13    Mees.    &    W.    845; 
Marrone    v.    Washington    Jockey 
Club,  227  U.  S.  633,  57  L.  Ed.  679. 
43  L.  R.  A.   (N.  S.)    691;   McCrea 
V.  Marsh,  12  Gray   (Mass.)   21,  71 
Am.  Dec.  745;  Burton  v.  Scherpf, 
1  Allen   (Mass.)   133,  79  Am.  Dec. 
717;    Meissner  v.  Detroit  B.   I.  & 
W.   Ferry   Co.,   154   Mich.   545,   19 
L.    R.    A.    (N.    S.)    872,    129    Am. 
St.  Rep.  493,  118  N.  W.   14;    Shu- 
beri    v.    Nixon    Co.,    83    N.    J.    L. 
101,  83  Atl.  369;   People  v.  Fynn, 
189  N.  Y.  180,  82  N.  E.  169;  Pur- 
cell  V.  Daly,  19  Abb.  N.  Cas.  301; 
Taylor   v.   Cohn,   47    Ore.    538,    84 
Pac.   388;    Horney   v.    Nixon,    213 
Pa.  St.  20,  1  L.  R.  A.  (N.  S.)  1184, 
61    Atl.    1088,    110    Am.    St.    Rep. 
520;   Buenzle  v.  Newport  Amuse- 
ment Ass'n,  29  R.   I.  23,  14  L.  R. 
A.   (N.  S.)  1242,  68  Atl.  721;  Bos- 
well    V.    Barnum    &    Bailey,    135 
Tenn.  35,  185   S.  W.  692;   W.  W. 
V.  Co.  V.  Black,  113  Va.  728,  Ann. 
Cas.  1913E.  558,  75  S.  E.  82. 

42.  Sullivan  Timber  Co.  v. 
Mobile,  124  Fed.  648;  Hicks  v. 
Swift  Creek  Mill  Co.,  133  Ala. 
411,  57  L.  R.  A.  720,  91  Am.  St. 
Rep.  38,  31  So.  947;  Alderman 
v.  New  Haven,  81  Conn.  137,  18 
L.  R.  A.  (N.  S.)  74,  70  Atl.  626; 
Hiers  v.  Mill  Haven  Co.,  113  Ga. 
1002,  39  S.  E.  444;  McReynolds 
v.  Harrigfield,  26  Idaho,  26,  140 
Pac.  1096;  Morse  v.  Lorenz,  262 
111.    115,    104    N.    E.    237;    Nowlin 


1208 


Keal  Property. 


r§  349 


nature  of  the  privilege  created  by  a  license  can  be 
altered  in  tliis  or  any  other  respect  by  reason  of 
the  fact  that  a  consideration  was  paid  for  the  license 
is  not  readily  perceptible.  But  though  the  payment  of 
a  consideration  should  not  render  a  license  irrevocable, 
the  fact  that  a  consideration  is  paid  for  a  grant  of 
permission,  either  oral  or  in  writing,  to  make  a  particu- 
lar use  of  one's  land,  is  a  circumstance  tending  to  show 
tliat  the  grant  of  an  easement  and  not  a  license  merely 
was  intended,  in  which  case,  as  hereafter  explained, 
the  making  of  improvements  on  the  faith  of  such  in- 
valid grant  will  justify  the  interposition  of  a  court  of 
equity  to  protect  the  grantee.*'^ 

Improvements     by     licensee.       The     question 


whether,  after  the  licensee  has  expended  money  in  the 
making  of  improvements  "on  the  faith  of  the  license," 


V.  Wliipple,  120  Ind.  596.  6  L.  R. 
A.  159,  22  N.  E.  669;  Ruthven 
V.  Farmers'  Co-oporative  Cream- 
ery Co.,  140  Iowa,  570,  118  N.  W. 
915;  Kastner  v.  Benz,  67  Kan. 
486,  73  Pac.  67;  Martin  v.  O'Brien, 
34  Miss.  21;  Wright  v.  Brown, 
163  Mo.  App.  117,  145  S.  W.  518; 
Ewing  V.  Rhea,  37  Ore.  583,  52 
L.  R.  A.  140,  82  Am.  St.  Rep.  783. 
62  Pac.  790;  Falls  City  Lumber 
Co.  V.  Watkins,  53  Ore.  212,  99 
Pac.  884;  Salinger  v.  North 
American  Woolen  Mills,  70  W. 
Va.  151,  73  S.  E.  312. 

In  Hurst  v.  Picture  Theatres, 
Ltd.  (1915)  K.  B.  1,  it  was  de- 
cided, by  two  judges  against  one, 
that  the  license  involved  in  the 
sale  of  a  ticket  for  a  perform- 
ance could  not  be  revoked.  The 
m.ajority  opinions  appear  to  be 
based  upon  the  theory  that  there 
was  a  contract,  capable  of  en- 
forcement by  injunction,  that  the 


ticket  holder  should  be  allowed 
to  sit  through  the  performance, 
which  gave  him  an  equitable  in- 
terest in  the  land  itself,  which 
could  not  be  withdrawn  at  will. 
Such  an  interest,  if  its  existence 
be  conceded,  must  be  in  the  na- 
ture of  an  easement,  and  an 
easement  to  endure  only  for  the 
period  of  a  moving  picture  per- 
formance is,  to  say  the  least,  a 
novelty.  That  the  ticket  holder 
has  no  interest  in  such  a  case, 
entitled  to  protection,  see  edito- 
rial notes  in  13  Mich.  Law  Rev. 
at  p.  401,  27  Harv.  Law  Rev.  495 
and  article  by  J.  C.  Miles,  Esq., 
31  Law  Quart.  Rev.  217.  The  de- 
cision is  approved  in  editorial 
notes  in  14  Columbia  Law  Rev. 
at  p.  608;  26  Yale  Law  Journal, 
395. 

43.     Post,    this     section,     notes 
43-49. 


§  349] 


Easements. 


1200 


that  is,  for  the  purpose  of  availing-  himself  of  the  li- 
cense, the  license  continues  revocable  as  it  was  before 
such  expenditure,  has  been  the  subject  of  a  great  num- 
ber of  dicta  and  decisions.  These  may  be  broadly 
divided  into  two  groups.  Those  in  the  one  group  are 
in  terms  that,  after  the  licensee  has  made  expenditures 
upon  the  strength  of  the  license,  a  revocation  of  the 
license  would  involve  a  fraud  upon  him,  which  a  court 
of  equity,  and  occasionally  a  court  of  law,  will  not 
permit.^^     Those  in  the  other  group  are  to  the  opposite 


44.  Davis  v.  Tway,  16  Ariz. 
566,  L.  R.  A.  IfllSE,  604,  147  Pac. 
750;  Stoner  v.  Zucker.  148  Cal. 
516,  7  Ann.  Cas  704.  113  Am.  St. 
Rep.  301,  83  Pac.  808;  Gyra  v. 
Windier,  40  Colo.  366,  13  Ann. 
Cas.  841,  91  Pac.  36;  Alderman 
V.  New  Haven,  81  Conn.  137,  18 
L.  R.  A.  (N.  S.)  74,  70  Atl.  626; 
Cook  V.  Pridgen,  45  Ga.  331,  12 
Am.  Rep.  582;  Cherokee  Mills  v. 
Standard  Cotton  Mills,  138  Ga. 
856,  76  S.  E.  373  (statute) ;  Mc- 
Reynolds  v.  Harrigfield,  26  Idaho, 
26,  140  Pac.  1096;  Girard  v.  Le- 
high Stone  Co.,  280  111.  479,  117  N. 
E.  698;  Ferguson  v.  Spencer,  127 
Ind.  66,  25  N.  E.  1035;  Joseph 
V.  Wild,  146  Ind.  249,  45  N.  E. 
467;  Decorah  Woolen  Mill  Co.  v. 
Greer,  49  Iowa,  490;  Hansen  v. 
Farmers'  Co-operative  Creamery, 
106  Iowa,  167,  76  N.  W.  652;  Pat- 
terson V.  City  of  Burlington,  141 
Iowa,  291,  119  N.  W.  593;  Kastner 
V.  Benz,  67  Kan.  486,  73  Pac.  67; 
Smyre  v.  Kiowa  County,  89  Kan. 
664,  132  Pac.  209;  Cape  Girar- 
deau &  T.  B.  T.  R.  Co.  V.  St. 
Louis  &  G.  Rwy.  Co.,  222  Mo. 
461,  121  S.  W.  300;  Great  Falls 
Water  works  Co.  v.  Great  North. 


Ry.  Co.,  21  Mont.  487,  54  Pac. 
?63;  Arterburn  v.  Beard.  86  Neb. 
733,  126  N.  W.  379.  Raritai- 
Water  Power  Co.  v.  Veghte,  21 
N.  J.  Eq.  142;  Van  Horn  v.  Clark, 
56  N.  J.  Eq.  476,  40  Atl.  203; 
Polakoff  V.  Halphen.  83  N.  J.  Eq. 
126.  89  Atl.  996  (But  soe,  as  to 
New  Jersey,  Lawrence  v.  Spring- 
er, 49  N.  J.  Eq.  289,  31  Am.  St. 
Rep.  702,  24  Atl.  993);  Lee  v.  Mc- 
Leod,  12  Nev.  280;  Bowman  v. 
Bowman,  35  Or.  279,  27  Pac.  546; 
Kelsey  v.  Bertram,  63  Ore.  563, 
127  Pac.  777;  Rerick  v.  Kern,  14 
Serg.  &  R.  (Pa.)  267;  Pierce  v. 
Cleland,  133  Pa.  189,  7  L.  R.  A. 
752,  19  Atl.  352;  Butz  v.  Rich- 
land Twp.,  28  S.  Dak.  442,  134  N. 
W.  895  (dictum);  Risien  v. 
Brown,  73  Tex.  135,  10  S.  W.  661 
(dictum);  Clark  v.  Glidden,  60 
Vt.  702,  15  Atl.  358;  Barre  v. 
Ferry  &  Scribner,  82  Vt.  301,  73 
Atl.  574;  Phillips  v.  Cutler,  89 
Vt.  233,  95  Atl.  487;  Kent  v. 
Dobqns,  112  Va.  586,  72  S.  E.  139 
(semhle);  Gustin  v.  Harting.  20 
Wyo.  1,  33  A.  &  E.  Ann.  Cas. 
1914C,    911,    121    Pac.    522. 

On  this  theory  it  has  been  de- 
cided     that      if      two      adjoining 


1210 


Eeal  Property. 


[§  349 


effect,  that  the  making  of  improvements  by  a  licensee 
is  not  ground  for  denying  to  the  licensor  the  right  of 
revocation  which   is   otherwise   incident   to   a  license.^^ 


owners  of  land  erect  buildings 
together  with  an  oral  agreement 
as  to  the  mutual  use  of  stair- 
cases or  hallways,  each  has  in 
eitect  a  license,  which  cannot  be 
withdrawn  after  the  buildings 
have  been  constructed  on  the 
faith  of  the  agreement.  Clark  v. 
Henckel  (Md.),  26  Atl.  1039; 
Binder  v.  Weinberg,  94  Miss.  817, 
48  So.  1013;  Cleland's  Appeal,  133 
Pa.  189.  7  L.  R.  A.  752,  19  Atl. 
352. 

45.  Hicks  V.  Swift  Creek  Mill 
Co.,  133  Ala.  411,  91  Am.  St.  Rep. 
38,  57  L.  R.  A.  720,  31  So.  947; 
Howes  V.  Barmon,  11  Idaho,  64, 
69  L.  R.  A.  568,  114  Am.  St.  Rep. 
255,  81  Pac.  48  (dictum);  St. 
Louis  Nat.  Stock  Yards  v.  Wig- 
gins Ferry  Co.,  112  111.  384,  54 
Am.  Rep.  243;  Dwight  v.  Hayes, 
150  111.  273,  41  Am.  St.  Rep.  367, 
37  N.  E.  218;  Lambe  v.  Man- 
ning, 171  111.  612,  49  N.  E.  509; 
Morse  v.  Lorenz,  262  111.  115,  104 
N.  E.  237  (But  see,  as  to  Illinois, 
Ashelford  v.  Willis,  194  111.  492, 
62  N.  E.  817)  ;  Moulton  v.  Faught, 
41  Me.  298;  Hodgkins  v.  Farring- 
ton,  150  Mass.  19,  15  Am.  St. 
Rep.  168,  5  L.  R.  A.  209,  22  N. 
E.  73;  Nowlin  Lumber  Co.,  v. 
Wilson,  119  Mich.  406,  78  N.  W. 
338;  Minneapolis  Mill  Co.  v. 
Minneapolis  &  St.  L.  Rwy.  Co., 
51  Minn.  304,  53  N.  W.  639  (But 
see  as  to  Minnesota,  dictum  in 
St.  John  V.  Sinclair,  108  Minn. 
274,  122  N.  W.  164  ) ;   Belzoni  Oil 


Co.  V.  Yazoo  &  M.  V.  R.  Co.,  94 
Miss.  58,  47  So.  468  (But  see,  ae 
to  Mississippi,  Binder  v.  Wein- 
berg, 94  Miss.  817,  48  So.  1013  ) ; 
Great  Falls  Waterworks  v.  Great 
Northern  Rwy.  Co.,  21  Mont.  487, 
54  Pac.  963;  Archer  v.  Chicago 
M.  &.  St.  P.  Rwy.  Co.,  41  Mont. 
56,  137  Am.  St.  Rep.  692,  108 
Pac.  571;  Houston  v.  Laffee,  46 
N.  H.  505;  Batchelder  v.  Hib- 
bard,  58  N.  H.  269;  Crosdale  v. 
Lanigan,  129  N.  Y.  604,  26  Am. 
St.  Rep.  551,  29  N.  E.  824;  Rich- 
mond &  D.  R.  Co.  V.  Durham  & 
N.  Ry.  Co.,  104  N.  Car.  658,  10  S. 
E.  659;  Rodefer  v.  Pittsburgh, 
etc.,  R.  Co.,  72  Ohio  St.  272,  70 
L.  R.  A.  844,  74  N.  E.  183;  Yeager 
V.  Tuning,  79  Ohio  St.  121,  86  N. 
E.  657;  Fowler  v.  Delaplaine,  79 
Ohio  St.  279,  87  N.  E.  260;  Poster 
V.  Browning,  4  R.  I.  47;  Nunnelly 
V.  Southern  Iron  Co.,  94  Tenn. 
397,  29  S.  W.  361;  Yeager  v. 
Woodruff,  17  Utah,  361,  53  Pac. 
1045  (semble);  Hathaway  v. 
Yakima  Water,  etc.,  Co.,  14  Wash. 
469,  53  Am.  St.  Rep.  874,  44  Pac. 
896;  Rhoades  v.  Barnes,  54  Wash. 
145,  102  Pac.  884;  Pifer  v. 
Brown,  43  W.  Va.  412,  49  L.  R. 
A.  497,  27  S.  E.  399;  Thoemke 
V.  Fiedler,  91  Wis.  386,  64  N. 
W.  1030;  Huber  v.  Stark,  124 
Wis.  359,  109  Am.  St.  Rep.  937, 
102  N.  W.  12;  (But  see,  as  to 
Wisconsin,  McDougald  v.  New 
Richmond  Roller  Mills  Co.,  125 
Wis.  121,  103  N.  W.  244;   Water- 


§  349] 


Easements.  1-1^ 


These  latter  cases  are  ordinarily  based  on  tlie  theory, 
firstly,  that  one   who   takes   a  license   is   presumed   to 
know  that,  as  a  matter  of  law,  a  license  is  revocable, 
and  consequently  cannot  assert  that  he  was  misled  by 
the  license  into  making  improvements  as  if  he  had  a 
more    or    less    permanent    interest    in    the    land,    and, 
secondly,  that,  in  so   far  as  the  license  is   oral,   as  is 
usually"  the  case,  the  contrary  view  involves  a  violation 
of  the  Statute  of  Frauds,  in  allowing  what  is  in  etteet 
a   permanent   or   quasi   permanent   interest   m   land   to 
be  created  orally.     A  consideration  of  the  question  on 
principle  would  seem  to  lead  to  the  conclusion  that  the 
two   groups   of  decisions   are  not  so   discordant   as   at 
first   sidit   appears,    and   that   the   difference    of   view 
really  centers  about  a  question  of  the  construction  ot 
the  license,   so   called,   as   to  whether  it   was   intended 
merely  as  a  license,  or  as  the  grant  of  an  easement, 
the  privilege  being  in  the  former  case  subject  to  with- 
drawal in  spite   of  the  improvements,  but  not   m   the 
latter.    In  other  words,  it  being  generally  recognized  ^«  *' 
that    in  the  case  of  an  oral  gift  of  land,  if  the  donee 
makes   improvements   on  the   faith   of  the   gift,   equity 
will  enforce  the  gift,  on  the  theor^^  of  part  performance 
or   equitable    estoppel,    it   necessarily    follows    that   an 
oral  gift  of  an  easement  or  right  of  profit  m  the  land 
Avill  likewise  be  enforced  in  equity  in  case  the   donee 
makes    improvements    on    the    faith    therof.''''      An    at- 
tempted oral  grant  or  '^agreement  for"  an  easement, 
in  return  for  a  valuable  consideration,  will  a  fortiori  be 
enforced  in  equity,  if  followed  by  improvements  on  the 
faith  thereof,  whether  it  be  regarded  for  this  purpose 

man    v     Norwalk,    145    Wis.    663,  the  fact  that  it  was  intended  by 

130  N    W    479.)  ^^®   owner   of   the   land   that   the 

46-47.     Post,  §   547.  user  of  his   land   should   be  per- 

48      But  in  Huber  v.  Stark,  121  manent    was    immaterial,    unless 

Wis.    359.   109   Am.    St.    Rep.    937.  there  was  a  consideration  for  the 

102   N.   W.   12,   it   was   held   that  grant  of  permission. 


1212  B.EAL.  Peoperty.  [§  349 

as  an  executory  contract  to  convey  an  easement  or  as 
an  attempt  to  grant  an  easement,  invalid  because  oraL*** 
Applying  the  above  considerations,  if  an  oral  per- 
mission to  make  a  particular  use  of  land  is  construed  as 
an  attempt  to  create  an  easement,  that  is,  an  interest 
in  the  land  of  a  more  or  less  permanent  character, 
which  is  therefore  invalid  as  not  being  in  writing,  the 
effect  of  the  making  of  improvements  on  the  faith 
thereof  will  be  to  create  an  equitable  right  in  accord- 
ance with  the  intended  gift  or  grant;  while  if  such 
permission  is  merely  a  license,  and  not  an  attempt  to 
create  an  easement,  then  it  is  properly  revocable  after 
as  before  the  making  of  improvements.  Accordingly, 
the  decisions  that  a  license  cannot  be  revoked  after  the 
making  of  improvements  on  the  faith  thereof  appear 
properly  to  involve  merely  the  assertion  of  a  rule  of 
construction,  that  an  oral  permission  to  make  a  particu- 
lar use  of  land,  which  use  is  such  that  it  will  be  neces- 
sary or  desirable  to  make  expenditures  in  order  to  avail 
oneself  of  the  permission,  is  to  be  construed  as  an 
attempt  orally  to  grant  an  easement  in  the  land,  which 
is  absolutely  invalid  as  a  grant,  but  operates  by  way  of 
equitable  estopjjel  in  favor  of  the  intended  grantee  if 
he  subsecjuently  makes  expenditures  on  the  assumption 
that  he  acquired  an  easement  thereby,  although,  as  a 
matter  of  fact,  he  originally  acquired,  by  reason  of 
the  invalidity  of  the  grant,  merely  a  license.  On 
the  other  hand,  the  decisions  that  a  license  can  be  re- 

49.     See  Flickinger  v.  Shaw,  87  v.  Weinberg,  94  Miss.  817,  48  So. 

Cal.    126,    22    Am.    St.    Rep.    234,  1013;    Lewis  v.  Patton.    42   Mont. 

11    L.    R.    A.    134,    25    Pac.    268;  528,    113    Pac.    745;    Wiseman    v. 

Legg  V.  Horn.  45   Conn.  415;    St.  Lucksinger,   84   N.   Y.   31,  38  Am. 

Louis    Nat.    Stock    Yards    Co.    v.  Rep.  479;   East  India  Company  v. 

Wiggins   Ferry   Co.,    112    lU.    384,  Vincent,    2    Atk.    83;    Devonshire 

54  Am.   Rep.  243;    Willoughby  v.  v.   Eglin,   14   Beav.   530;    Plimmer 

Lawrence.    116    in.    11,    56    Am.  v.  Wellington,  L.  R.  9  App.   Cas. 

Rep.   758,   4   N.    E.    356;    Johnson  699;    Mc:\Ianus    v.    Cooke,    35   Ch. 

V.  Skillman,  29  Minn.  95,  43  Am.  Div.  681. 
Rep.    192,    12    N.    W.    149;    Binder 


§  349]  Easements.  1213 

voked  even  after  the  making  of  improvements  on  the 
faith  thereof  appear  properly  to  involve  the  assertion 
of  a  rule  that  permission  to  make  a  particular  use  of 
land  is  not  to  be  construed  as  an  intended  grant  of  an 
easement,  even  though  its  enjoyment  does  involve  the 
making  of  improvements  hy  the  person  to  whom  it  is 
given.  In  accordance  with  this  view,  that  the  question  is 
properly  one  of  the  construction  of  the  language  used 
in  granting  the  permission,  in  connection  with  the 
character  of  the  acts  authorized  and  the  necessity  of 
expenditures  to  make  the  permission  practically  avail- 
able, are  occasional  decisions  that  if  the  license  is  ex- 
pressed to  be  revocable,  or  subject  to  the  pleasure  of 
the  licensor,  it  may  be  revoked  in  spite  of  expenditures 
for  improvements,^*^  as  well  as  occasional  suggestions 
that  if  the  permission  is  granted  for  a  named  period  it 
canot  be  revoked  until  the  end  of  that  period.''^  If 
permission  to  use  "another's  property  is  expressed  to 
be  revocable,  it  must  necessarily  be  either  a  license 
merely,  or  the  grant  of  an  easement,  subject  to  a  power 
of  revocation,  while  if  it  is  granted  for  a  named  period, 
it  cannot  be  intended  as  a  license  merely,  but  nmst  he 
construed  as  a  i>rant,  or  attempted  grant,  of  an  ease- 
ment. 

It  h;is  in  one  state  been  decided  tliat  wlicn  a  license 
to  make  a  particular  use  of  one's  land  is  merely  in- 
ferred from  acquiescence  in   such  use,"*-  the  making  of 

50.     Thompson    v.    Normanden,  in   spite  of  expenditures.   Brower 

134    Iowa,    720,    112    N.    W.    188;  v.  Wakeman.  88  Conn.   8,   89  Atl. 

Laughery    Turnpike    Co.    v.    .Mc-  913. 

Creary,    147    Ind.    526,    46    N.    E.  51.     St.  Louis  Nat.  Stock  Yards 

906;   Kentucky  Distilleries  Ware-  Co.  v.  Wiggins  Ferry  Co.,  112  111. 

house    Co.   V.    Warwick     Co..    166  384,  54  Am.  Rep.  243:  Baynard  v. 

Ky.    651.    179    S.    W.    611;     Wood  Every    Evening    Printing    Co.,    9 

V.    Edes,    2    Allen     (Mass.)     578;  Del.  Ch.  127,  77  Atl.  885;    Adams 

Risien  v.  Brown,  73  Tex.  135,  10  v.  Weir  &  Flagg  (Tex.  Civ.  App.), 

S.    W.    661;    Hall    v.    Chaffee,    13  99  S.  W.  726. 

Vt.  150.     So  if  it  is  for  one  y;e^r  52.     Ante,  this  section,  note  27. 

only,    it    is    revocable    thereafter 
2.  R.  ?.— 2 


1214  Keal  Peoperty.  [§  349 

improvements  hj  tlie  Jicensee  did  not  render  the  license 
irrevocable.^''  Such  a  view  appears  reasonable.  There 
is  evidently  no  attempted  grant  of  an  easement,  and 
nothing  on  which  the  licensee  can  properly  base  an  as- 
sumption that  he  has  a  permanent  interest  in  the  land, 
so  as  to  justify  his  expenditure  for  improvements. 

There  are  occasional  decisions  or  dicta  that  after 
a  license  has  become  irrevocable  by  reason  of  the 
•making  of  improvements  thereunder  or,  as  we  would 
prefer  to  express  it,  after  an  attempted  oral  grant  of 
an  easement  has  been  validated  by  such  making  of  im- 
provements, the  license  privilege  remains  irrevocable, 
or  the  easement  endures,  only  so  long  as  the  improve- 
ments originally  made  continue  available  for  the  pur- 
pose of  its  exercise.^'"  This  view  appears  to  involve  a 
failure  to  recognize  the  connection  between  the  case 
referred  to  and  the  doctrine  of  part  performance  or 
equitable  estoppel.  There  is  no  more  reason  that  the 
privilege  should  in  such  case  be  restricted  to  the  life 
of  the  improvements  than  that  a  decree  specifically  en- 
forcing a  contract  for  the  sale  of  land,  based  on  the 
part  performance  involved  in  the  making  of  improve- 
ments, should  call  for  a  conveyance  of  an  estate  to  en- 
dure only  as  long  as  the  improvements  endure. 

Occasionally  the  courts  have  suggested  or  asserted 
that,  in  case  the  licensee  has  made  improvements  on 
the  faith  of  the  license,  it  can  be  revoked,  but  only  if 
the  licensee  is  placed  in  statu  quo  by  reimbursement  of 
the  cost  of  such  improvements.^*     The  propriety  of  this 

53.     Shaw  V.  Prof itt.  57  Ore.  192,  Clark  v.   Glidden,    60   Vt.   702,   15 

Ann.  Cas.  1913A,  63,  109  Pac.  584,  Atl.  358. 

110  Pac.  1092;  Ewing  v.  Rhea,  37  54.     Wynn  v.  Garland,  19  Ark. 

Ore.    583,    82    Am.    St.    Rep.    783,  23,    68    Am.    Dec.    190;    Flick   v. 

52    L.    R.    A.    140,    62    Pac.    790.  Bell,    110    Cal.    xvii   42    Pac.    813; 

Compare  Boynton  v.  Hunt,  88  Vt.  Southwestern  R.   Co.  v.  Mitchell, 

187;  92  Atl.  153.  69  Ga.  114;    Dlllion  v.   Crook,  11 

53a.     Ameriscoggin     Bridge     v.  Bush     (Ky.)     321;     Ferguson     v. 

Bragg,  11  N.  H.  102;    Phillips  v.  Spencer    127    Ind.    66,    25    N.    E. 

Cutler,    89    Vt.    233,   95    Atl.    487;  1035;    Shipley   v.    Fink,    102    Md. 


^  349]  Easements.  1215 

form  of  relief  in  favor  of  the  person  making  the  im- 
provements, like  that  of  the  absolute  negation  of  the 
right  to  revoke,  appears  properly  to  be  a  question  of  the 
construction  of  "the  language  used  in  according  permis- 
sion to  make  use  of  the  land,  as  to  whether  it  is  a 
license  or  the  attempted  grant  of  an  easement.  If  the 
latter,  it  is  for  the  court,  in  its  discretion,  it  would 
seem,  to  determine  whether  the  landowner  should  be 
given  an  opportunity,  by  reimbursing  the  expenditures 
made  on  the  faith  of  the  invalid  grant,  to  relieve  his 
land  of  the  easement  to  which  it  would  otherwise  be  sub- 
ject on  the  theory  of  equitable  estoppel. 

License  coupled  with  an  interest.     A  license 

which  is  coupled  with  a  grant  or  interest  cannot,  it  is 
agreed,  be  revoked. ^^  What  this  means  is  that  if  one 
has  an  interest,  acquired  by  grant  or  otherwise,  in  some 
thing  or  things  upon  the  land,  for  the  purpose  of  re- 
moving which  a  license  to  enter  on  the  land  is  expressly 
given  or  necessarily  implied,  such  removal  cannot  be 
prevented  •  on  the  theory  that  a  license  is  revocable. 
The  doctrine  that  a  license  coupled  with  an  interest  is 
irrevocable   has   been   applied   in   the   case   of   chattels 

219,  62  Atl.  316;  Dawson  v.  West-  330,  351;    Wood  v.  Leadbitter,  13 

ern   Md.   R.   Co.,    107   Md.    70,    14  Mees.  &  W.  838;    Miller  v.  State, 

L.  R.   A.  N.   S.   809,   126  Am.   St.  39  Ind.  267;  Long  v.  Buchanan,  27 

Rep.    337,    15    A    &   E.    Ann.    Cas.  Md.   502,   92  Am.   Dec.   653;    Ster- 

678,  68  Atl.  301;  Johnson  v.  Bart-  ling  v.  Warden,  51  N.  H.  217,  12 

ron,  23  N.  D.  629,  44L.  R.  A.  (N.  S.)  Am.    Rep.    80;     Williamston    etc. 

557,    137    N.    W.    1092.     See    com-  R.    Co.   v.    Battle,    66    N.    C.    540; 

pilation  of  cases  in  44  L.  R.  A.  Metcalf  v.   Hart,   3  Wyo.  513,   31 

N.  S.  557.  Am.    St.   Rep.    122,    27    Pac.    900, 

Applying  such  a  theory,  it  has  31  Pac.  407. 
been   held   that  if  the  licensee  is  Occasionally    the    courts    have 

allowed     to     recover     from     the  mistakenly    referred    to   what    is 

licensor  the  value  of  his  improve-  properly  a  valid  grant  of  a  right 

ments,  he  cannot  thereafter  assert  of    profit,    as    a    license    coupled 

that    the    license    is    irrevocable.  with  an  interest.  Funk  v.  Halde- 

Oster   V.    Broe,    161    Ind.    131,   64  man,  53  Pa.  229;   McLeod  v.  Dial, 

N.  E.  918.  63  Ark.  10,  37  S.  W.  306. 

55.    Thomas  v.  Sorrell,  Vaughan 


1216  Real  Property.  [§  349 

sold  while  lying-  upon  the  vendor's  premises, ^'^  and  also 
in  the  case  of  chattels  placed  upon  another's  land  by 
the  latter 's  permission.^'^  So,  as  has  been  judicially 
stated,^^  while  a  license  by  A  to  hunt  in  his  park, 
whether  given  by  deed  or  parol,  is  revocable,  as  merely 
rendering  lawful  the  act  of  hunting,  which  would  other- 
wise be  unlawful,  on  the  other  hand,  if  the  license  be, 
not  only  to  hunt,  but  also  to  take  away  the  deer  killed 
to  his  own  use,  this  is  a  grant  of  the  deer,  with  a  license 
annexed  to  come  on  the  land,  and  sup])osing  the  grant 
of  the  deer  to  be  good,  the  license  is  irrevocable.  The 
doctrine  might  also  be  applied  in  connection  with  a 
valid  conveyance  or  sale  of  growing  trees,  or  of  min- 
erals or  fixtures  in  or  on  the  land,  which  while  legally  a 
part  of  the  land,  are  capable  of  becoming  ])ersonalty 
by  severance,^^  but  in  such  a  case  the  inability  of  the 
landoVkTier  to  deprive  the  transferee  of  the  privilge  of 
entering  on  the  land  for  the  purpose  of  removing  the 
things  granted  may  perhaps  be  more  satisfactorily 
based  on  the  theory  that  the  grantee  of  those  things, 
trees,  minerals  or  fixtures,  as  the  case  may  be,  acquires 
not  a  license  merely,  but  an  easement,  a  right  of  way  by 
necessity,^ "^  which  will  endure  so  long  as  the  necessity  ex- 
ists. 

A  license  is  obviously  not  coupled  with  a  grant  or 
interest  in  the  sense  referred  to,  so  as  to  be  irrevocable, 

56.  Wood  V.  Manley,  11  Ad.  &  &  W.  483:  Giles  v.  Simonds,  15 
El.  34;  Walker  Furniture  Co.  v.  Gray  (Mass.)  441,  77  Am.  Dec. 
Dyson,  32  Dist.  Col.  A.pp.  90,  19  373;  Sterling  v.  Warden,  51  N. 
L.  R.  A.  N.  S.  606;  Parker  v.  H.  217,  12  Am.  Rep.  80;  White 
Barlow,  93  Ga.  700,  21  S.  E.  213;  v.  Elwell,  48  Me.  360,  77  Am.  Dec. 
Rogers   v.    Cox,    96    Ind.    157,    49  231. 

Am.  Rep.  152;   Giles  v.  Simonds,  58.     Wood     v.     Leadbitter,     13 

15  Gray  (Mass.)  441,  77  Am.  Dec.  Mees.  &  W.  828. 

373;    Heath   v.   Randall,    4    Cush.  59.     See    dewberry    v.    Chicago 

(Mass.)    195;    Lambert   v.   Robin-  Lumbering  Co.,  154  Mich.  84,  117 

son,  162  Mass.  34,  44  Am.  St.  Rep.  N.  W.  592;  and  infra,  this  section 

326,  37  N.  E.  753.  section,  note  63. 

57.  Patrick  v.  Colerick,  3  Mees.  60.     Post,  §  363(c). 


§  349]  Easements.  1217 

if  the  licensee  lias  failed  to  secure  any  interest  by 
reason  of  the  invalidity  of  the  attempted  grant  of  the 
interest.'^ ^  So  it  has  been  frequently  decided  that,  an 
oral  sale  of  growing  trees  being  insufficient  to  pass 
them  as  such/^^  the  vendee  has  merely  a  revocable 
license  to  cut  the  trees,  while,  after  they  are  cut,  the 
sale  is  regarded  as  taking  effect  on  them,  as  intended,  in 
their  chattel  character,  and  then  the  vendee,  having  an 
interest  in  the  trees,  has  an  irrevocable  license  to  enter 
on  the  land  to  remove  them.''-^  And  a  like  doctrine 
has  been  applied  in  connection  with  a  sale  of  minerals  in 
or  fixtures  upon  the  land  which,  as  being  oral  merely, 
is  not  effective  as  a  transfer  thereof.^* 

If  what  was  originally  a  license  has  become,  by 
the  application  of  the  doctrine  of  part  performance  or 
equitable  estoppel,  in  effect  an  easement,  it  no  doubt 
remains  a  burden  upon  the  land  in  the  hands  of  a  subse- 
quent purchaser  of  the  land,  except  when  he  is  a  pur- 
chaser for  value   and  without   notice.^^     And   a   subse- 

61.  Crosby  v.  Wadsworth,  6  159,  29  Atl.  840;  Polk  v.  Carney. 
East,  602;  Wood  v.  Leadbitter,  17  S.  D.  436.  97  .N  W.  360; 
13  Mees  &  W.  838;  Long  v.  Buch-  Welever  v.  Advance  Sningle  Co., 
anan,  27  Md.  502,  92  Am.  Dec.  653.  34   Wash.  331,  75  Pac.  863;    Bru. 

62.  Ante,  §  261,  note  82.  ley   v.   Garvin,    105   Wis.    625,    48 

63.  Colby  Hinkley  Co.  v.   Jor-  L.  R.  A.  839,  81  N.  W.  1038. 

dan,    146    Ala.    634,    41    So.    962;  In   Cool   v.   Peters  Box   Co.,   87 

Jenkins  v.  Lykes,  19  Fla.  148,  45  Ind.   531,  it  was   considered  that 

Am.  Rep.  19;   Cool  v.  Peters  Box  even    if    the    trees    were    cut    by 

&  Lumber  Co.,  87  Ind.  531;    Gar-  a   stranger,    the   contract  of   sale 

ner   v.    Mahoney,    115    Iowa,    356,  operated  to  vest  title  thereto   in 

88  N.  W.  828;   Martin  v.  Johnson,  the  original  vendee,  who  was  con- 

105    Me.    156,   73    Atl.    963;    Giles  sequently  entitled  to  sue  the  stran- 

V.  Simonds,  15  Gray   (Mass.)   441,  ger  for  their  conversion. 

77  Am.  Dec.  373;    United  Soc.  v.  64.     MtCullagh     v.     Rains,     7.") 

Brooks,  145   Mass.   410,    14  N.   E.  Kan.  4.58,  89  Pac.  1041;  Wetospsky 

622:  White  v.  King,  87  Mich.  107,  v.   New  Haven  Gas  Light  Co.,  88 

49  N.  W.  518;   Walton  v.  Lowrey,  Conn.  1,  90  Atl.  30;   Whitaker  v. 

74  Miss.  484,  21   So.  243;    Pierre-  Cawthorne,  14  N.  Car.  389. 

pont    v.    Barnard,    6    N.    Y.    279;  65.     That  an  innocent  purchaser 

Fish  v.  Capwell,  18  R.  I.  667,  49  for  value  is  protected,  see  Prince 

Am.    St.    Rep.    807,    25    L.    R.    A.  v.  Case,  10  Conn.  375,  27  Am.  Dec. 


1218 


Real.  Property. 


§  349 


qiient  purcliaser  with  notice  has  no  more  right  than  has 
his  vendor  to  revoke  the  license,  so  called.^*^  The  li- 
censee has  an  equity  against  the  licensor,  the  right  to 
enforce  which  as  against  a  purchaser  from  the  licensor 
is  determined  by  the  ordinary  rule  for  determining 
priorities  in  equity.*^ ^ 

(e)  Mode  of  revocation.   A  license  may  be  re- 


voked either  by  express  words  to  that  effect,  or  by  an 
act  on  the  part  of  the  licensor  indicating  an  intention  to 
revoke  it,^^  as  when  he  makes  its  exercise  impossible.'^" 
It  is  likewise  revoked  by  a  conveyance  of  the 
land    to    a    third    person,*^*^    or    by    the    death    of    the 


675;  Clark  v.  Close,  43  Iowa,  92; 
Wilkins  v.  Irvine,  33  Ohio  St.  138; 
Wheation  v.  Cutler,  84  Vt.  476,  79 
Atl.  1091. 

66.  Russell  v.  Hubbard,  59  111. 
335;  Arterburn  v.  Beard,  86  Neb. 
733,  126  N.  W.  379;  Joseph  v. 
Wild,  146  Ind.  249,  45  N.  E.  467; 
Portman  v.  Topliff,  138  Iowa,  19, 
115  N.  W.  508;  Carrolton  Tele- 
phone Exchange  Co.  v.  Spicer,  177 
Ky.  340,  197  S.  W.  827;  Shaw  v. 
Profitt,  57  Ore.  192,  Ann.  Cas. 
1913A,  63,  109  Pac.  584,  110  Pac. 
1092. 

67.  See  Ewart,  Elstoppel,  199 
and  post,    §    566. 

68.  Wood  V.  Leadbitter,  13 
Mees.  &  W.  838;  Prince  v.  Case, 
10  Conn.  375,  27  Am.  Dec.  675; 
Fluker  v.  Georgia  Railroad  & 
Banking  Co.,  81  Ga.  461,  12  Am.  St. 
Rep.  328,  2  L.  R.  A.  843,  8  S. 
E.  529;  Forbes  v.  Balenseifer,  74 
111.  183;  Fischer  v.  Johnson,  106 
Iowa,  181,  76  N.  W.  658;  Hodg- 
kins  V.  Farrington,  150  Mass.  19, 
5  L.  R.  A.  209,  15  Am.  St.  Rep. 
168,  22  N.  E.  73;  Pitzman,  v. 
Boyce,   111   Mo.    387,   33    Am.    St. 


Rep.  336;    Carleton  v.  Redinglon 
21  N.  H.  291.311. 

But  it  has  been  held  that  the 
institution  of  an  action  of  eject- 
ment by  the  licensor  against  the 
licensee  does  not  effect  a  revo- 
cation for  the  purpose  of  that 
action.  Somers  v.  Somers,  83  Conn. 
156,   76  Atl.  45. 

69.  Hyde  v.  Graham,  1  Hurlst. 
&  C.  593;  Forbes  v.  Balenseifer, 
74  111.  183;  Fowler  v.  Hyland,  48 
Mich.  179,  12  N.  W.  26;  Pitzman 
V.  Boyce,  111  Mo.  387,  33  Am.  St. 
Rep.  536,  19  S.  W.  1104;  Quimby 
V.  Straw,  71  N.  H.  160,  51  Atl.  656; 
West  V.  Shaw,  61  Wash.  227,  112 
Pac.  243;  Hazelton  v.  Putnam,  3 
Pin.  (Wis.)   107,  54  Am.  Dec.  158. 

70.  Wallis  V.  Harrison,  4  Mees. 
&  W.  538;  Hicks  v.  Swift  Creek 
Mill  Co.,  133  Ala.  411,  91  Am.  St. 
Rep.  38,  57  L.  R.  A.  720,  31  So. 
947;  Wetospsky  v.  New  Haven 
Gas  Light  Co.,  88  Conn.  1,  Ann. 
Cas.  1916D,  968,  90  Atl.  30;  Jen- 
kins V.  Lykes,  19  Fla.  148,  45  Am. 
Rep.  19;  High  v.  Jasper  Mfg.  Co., 
57    Fla.    437,    49    So.    156;    Kamp- 


§  349] 


Easements. 


1219 


licensor/^  since  a  license  cannot  justify  a  trespass  on 
land  as  against  the  licensor's  grantee,  heir  or  devisee."^ - 

(f)    Termination  otherwise  than  by  revocation. 


A  license  may,  as  above  indicated,  cease  to  be  opera- 
tive by  reason  of  its  revocation,  that  is,  by  reason  of 
the  landowner's  indication  of  an  intention  to  that 
effect,*^-^  or  by  reason  of  the  land  having  passed  into 
the  hands  of  a  person  other  than  the  licensor/^  It 
may  also  cease  to  ■  be  operative  by  force  of  the  terms 
of  the  license  itself,  as  when  it  permits  only  one  act 
by  the  licensee,  and  that  act  has  been  done,  or  the 
license  is  limited  as  to  time,'^^   or  it  is   subject   to   a 


house  V.  Gaffner,  73  111.  453;  Mc- 
Intyre  v.  Harty,  236  111.  629,  86 
N.  E.  581 ;  Seidensparger  v.  Spear, 
17  Me.  123,  35  Am.  Dec.  234; 
Drake  v.  Wells,  11  Allen  (Mass.) 
141;  Minneapolis,  etc.  R.  Co.  v. 
Marble,  112  Mich.  4,  70  N.  W. 
319;  Minneapolis  Western  Ry.  Co. 
V.  Minneapolis  &  St.  L.  Ry.  Co., 
58  Minn.  128,  59  N.  W.  983;  Houx 
V.  Seat,  26  Mo.  178,  72  Am.  Dec. 
202  (but  see  Bracht  v.  Johnson, 
187  Mo.  App.  220,  173  S.  W.  692); 
Eckerson  v.  Crippen,  110  N.  Y.  585, 
1  L.  R.  A.  487,  18  N.  E.  443; 
VoUmer's  Appeal,  61  Pa.  St.  118; 
Price  etc.  Co.  v  Madison,  17  S. 
D.  247,  95  N.  W.  9;{3;  U.  S.  Coal 
&  Oil  Co.  V.  Harrison,  71  W.  Va. 
217,  47  L.  R.  A.  N.  S.)  870,  76 
S.  E.  346;  Coleman  v.  Foster,  1 
Hurlst.  &  N.  27    (lease). 

So  it  is  revoked  by  the  con- 
veyance of  a  right  of  user  in 
the  land  the  exercise  of  which 
is  inconsistent  with  the  enjoy- 
ment of  the  license.  Salinger  v. 
North  American  Woolen  Mills  Co., 
70  W.  Va.  151,  73  S.  B.  312;  Archer 
v.    Chicago    M.   &   St.    P.   R.   Co., 


41  Mont.  56,  137  Am.  St.  Rep.  692, 
108  Pac.  571. 

71.  DeHaro  v.  United  States,  5 
Wall.  (U.  S.)  599,  18  L.  Ed.  681; 
Jensen  v.  Hunter,  108  Cal.  xvii, 
41  Pac.  14;  Lambe  v.  Manning, 
171  111.  612.  49  N.  E.  509;  Spacy 
V.  Evans,  152  Ind.  431,  52  N.  E. 
605;  Hodgkins  v.  Farrington,  150 
Mass.  19,  5  L.  R.  A.  209,  15  Am. 
St.  Rep.  168,  22  N.  E.  73;  Estelle 
V.  Peacock,  48  Mich.  469,  12  N.  W. 
659;  East  Jersey  Iron  Co.  v. 
Wright,  32  N.  J.  Eq.  248;  Eggles- 
ton  v.  New  York  &  H.  R.  Co..  35 
Barb  (N.  Y.)  162;  Chavez  v.  Tor- 
lina,  15  N.  Mex.  53,  99  Pac.  690; 
Bridges  v.  Purcell,  18  N.  C.  492; 
Caledonian  etc.  School  v.  Kent,  86 
Vt.  151.  84  Atl.  26;  Hazelton  v. 
Putnam,  .3  Chand.  (Wis.)  117,  3 
Pin.  107,  54  Am.  Dec.  158. 

72.  See  note  in  14  Harv.  Law 
Rev.  at  p.  73. 

73.  Ante,  this  section,  notes  68, 
69. 

74.  Ante,  this  section,  notes  70, 
7]. 

75.  Reed  v.  Merrefield.  10  Mete. 
155;    Gilmore   v.    Wilson,    53    Pa. 


1220  Real  Peoperty.  [§  349 

condition  which  has  been  violated. "^^  It  may  also  come 
to  an  end  by  reason  of  the  expiration  of  a  reasonable 
time  for  acting  thereunder/^  or  by  reason  of  its  aban- 
donment by  the  licensee.''^  And  a  license  being  personal 
to  the  licensee,  it  becomes  inoperative  upon  his  death.'''* 
A  license  not  being  assignable,  an  attempted  as- 
signment by  the  licensee  of  his  rights  thereunder  has 
been  regarded  as  bringing  the  license  to  an  end,'^  the 
courts  following  in  this  regard  the  analog\'  of  a 
tenancy  at  will.  It  hag  also  been  regarded  as  terminated 
by  a  sale  of  the  land,  even  prior  to  a  conveyance  in 
pursuance  thereof,  the  purchaser  being  let  into  posses- 
sion,^" and  also  by  the  setting  off  of  the  land  under 
execution  against  the  owner.^^ 

(g)    Effect  of  termination.     The  termination  of 

a  license,  by  revocation  or  othei'wise,  while  it  pre- 
cludes any  subsequent  acts  on  the  authority  of  the 
license,  does  not  affect  the  validity  of  acts  previously 
done  thereunder.''-    If  the  licensee,  in  the  course  of  the 

194;   Oesting  v.  New  Bedford.  210  41  Am.  Rep.   720,   11   N.   W.   265; 

Mass.  396,   96  N.  E.  1095;    Glynn  Chandlery.  Spear.  22  Vt.  388. 

V    George,   20    N.    H.   114.  79.     Bates  v.   Duncan,    64   Ark. 

76      Pratt    v.    Ogden,    34    N.    Y.  339,    62    Am.    St.    Rep.    190    42    S. 

20.  W.   410;    Fischer  v.  Johnson,   106 

77.  Atite,  §  :M9(c),  note  36.  Iowa,    181,   76   N.    W.    658;    Blals- 

78.  East  Jersey  Iron  Co.  v.  dell  v.  Portsmouth  etc.  R.  Co.,  51 
Wright,  32  N.  J.  Eq.  248;  Lake  N.  H.  483;  Dark  v.  Johnston,  55 
Erie  R.  Co.  v.  Michener,  117  Ind.  Pa.  164,  93  Am.  Dec.  732;  Polk  v. 
465,   20  N.  E.  254.  Carney,  17  S.  Dak.  436,  97  N.  W. 

78a.     Prince  v.    Case,    10   Conn.  360. 

375,  27  Am.  Dec.  675;   Ruggles  v.  80.     Bruley  v.  Garvin,  105  Wis. 

Lesure,  24  Pick.  (Mass.)  187;  Page  625,    48    L.    R.    A.    839,    81    N.    W. 

V.    Gaskill,    84    N.    J.    L.    615,    87  1038. 

Atl.   460;    Hazelton  v.   Putnam,   3  81.     Taylor  v.  Gerrish,  59  N.  H. 

Chand.  (Wis.)   117.  3  Pin.  107,  54  5C9. 

Am.  Dec.  158.  82.     Foot  v.  New  Haven  etc.  Co., 

As  to   the  effect,   in   case   of  a  23  Conn.  214;  Owens  v.  Lewis,  46 

license  given  to  two  or  more  per-  Ind.  488,  15  Am.  Rep.  295;  Stevens 

sons  jointly,  of  the  death  of  one,  v.  Stevens,  11   Mete.    (Mass.)    251, 

see  Rust  v.  Conrad,  47  Mich.  449,  45    Am.    Dec.    '203;    Blaisdell    v. 


<^  349]  Easements.  1221 

exercise  of  his  rights  under  the  license,  has  placed 
anything  on  the  land,  he  is  entitled,  upon  revocation 
of  the  license,  to  a  reasonable  time  within  which  to 
remove  it.^^ 

There  is  no  obligation  upon  the  licensee,  on  revoca- 
tion of  the  license,  to  restore  the  land  to  the  condition 
in  which  it  was  before  he  made  changes  therein  or 
placed  structures  thereon,  under  authoritv  of  the 
license.-^ 

The  question  of  the  right  to  revoke  a  license  is 
entirely  distinct  from  the  question  whether,  in  revoking 
it,  the  licensor  violates  a  contract  on  his  part,  express 
or  implied,  not  to  revoke  it.  Though  the  revocation  is 
perfectly  valid  and  effective,  the  licensor  may  be  liable 
in  damages  for  having  revoked  it.'*'^ 

(h)    Assignment  of  license.     A  license  creates 

a  privilege  personal  to  the  licensee,  wliich  cannot 
ordinarily  be  transferred  by  him  to  another.''"     If  the 

Portsmouth  etc.  R.  Co.,  51  N.  H.  400;  Cornish  v.  Stubbs,  L.  R.  5  C. 

483;  Freeman  v.  Hadley,  32  N.  J.  P.    334.      See    Wilson    v.    Tavener 

L.   225;    Great   FaUs   Waterworks  (1901)     1    Ch.    578;    Hodgkins    v. 

Co.  V.  Great  Northern  Rwy.  Co.,  21  Farrington,  150  I\Iass.  19,   15  Am. 

Mont.   487,   54   Pac.   963;    Pratt  v.  St.    Rep.    168,   5   L.   R.    A.    209,   22 

Ogden,    34    N.    Y.    20;    Pursell    v.  N.  E.  73. 

Stover,    110   Pa.   43,    20  Atl.    403;  84.     Liggins    v.    Inge.    7    Bing. 

Merri weather  V.  Dixon,  28  Tex.  15;  682;   Hodgkins  v.  Farrington,  150 

Lockhart  v.  Geir,  54  Wis.  133,  11  Mass.    19,    15    Am.    St.    Rep.    168, 

N.  W.   245;    Winter  v.  Broekwell,  58  L.  R.  A.  209,  22   N.  E.  73. 

8  East  308.  85.     Kerrison  v.   Smith,    (1897) 

83.     Brower    v.    Wakeman,    88  2  Q.  B.  445;   McCrea  v.  Marsh,  12 

Conn.   8,   89   Atl.   913;    Shipley   v.  Gray    (Mass.)    211;     Goldman    v. 

Fink,    102    Md.    219,    62    Atl.    316;  Beach  Front  Realty  Co.,  83  N.  J. 

Ingalls   V.    St.   Paul,   M.   &   M.    R.  L-  97,  83  Atl.  777;   Pollock.  Torts. 

Co.,  39  Minn.  479,  12  Am.  St.  Rep.  (6th  Ed.)    .'iG3. 

476,    40    N.    W.    524,    Great    Falls  86.     Wickham     v.     Hawker.     7 

Waterworks  Co.  v.  Great  Northern  Mees.  &  W.  63;  Ackroyd  v.  Smith, 

R.  Co.,  21  Mont.  487,  54  Pac.  963;  10  C.   B.   188;    Prince  v.  Case,  10 

Putnam   v.    State,    132   N.   Y.    344,  Conn.  375,  27  Am.  Dec.  675;   .Ten- 

30  N.   E.    743;    Wright   v.    Brown,  kins    v.    Lykes,    19    Fla.    148.    45 

163  Mo.  App.  117,  145  S.  W.  518;  Am.  Rep.  19;   Dawson  v.  Western 

Mellor  V.  Watkins,  L.  R.  9  Q.  B.  Md.  R.  Co.,  107  Md.  70.  14  L.  R. 


1222  Real  Property.  [§349 

license  is  coupled  with  an  interest,'^*'''  however,  it  en- 
ures to  the  benefit  of  one  to  whom  the  interest  is  as- 
signed,^^  that  is,  as  the  original  grantee  of  things  upon 
or  in  the  land  may  enter  to  remove  them,  so  any  person 
acquiring  title  to  them  from  him  may  do  so.  And  a 
license,  so  called,  which  is  irrevocable  by  reason  of 
expenditures  by  tlie  licensee  ©n  the  strength  thereof,®* 
is  presumably  assignal)le,  in  the  sense  that  the  privilege 
of  making  the  particular  use  of  another's  land  passes 
as  incident  to  the  transfer  of  land  of  the  licensee  for 
the  benefit  of  which  the  license  was  given,®^  that  is, 
as  an  appurtenant  easement. 

In  one  case  it  was  held  that  the  benefit  of  a  license, 
contained  in  an  instrument  of  lease,  enabling  the  lessor 
to  enter  for  a  certain  purpose,  passed  to  his  transferee 
and  was  enforcible  against  an  assigTiee  of  the  lessee,  the 
instrument  expressly  providing  that  the  stipulations 
should  extend  to  and  be  binding  on  the  assignees  of 
the  respective  parties,*^^  and  in  another  case  it  was 
held  to  pass  to  the  lessor's  transferee  without  any 
mention  of  assigns.^*'''  Such  a  stipulation,  in  terms 
giving  the  lessor  a  right  to  enter  on  the  land,  if  re- 
garded as  a  contract  to  the  effect  that  the  lessor  or  his 
transferee  should  be  allowed  to  enter,  may  well  pass  on 

A.   (N.  S.)   809,  126  Am.  St.  Rep.  Mees.  &  W.  63;  Heflin  v.  Bingham, 

337,    15    Ann.    Cas.    678,    68    Atl.  56    Ala.    566,    28    Am.    Rep.    776; 

301;  Ward  v.  Rapp,  79  Mich.  469,  Ely  v.  Cavanaugh,   82  Conn.  681. 

44  N.  W.  934:    Fuhr  v.  Dean.  26  74  Atl.  1122;  Sawyer  v.  Wilson,  61 

Mo.  116,  69  Am.  Dec.  484;   Cowles  Me.  529;  Wiseman  v.  Eastman.  21 

V.  Kidder,  24  N.  H.   364.   57  Am.  Wash.  163,  57  Pac.  398. 

Dec.  287;  Blaisdell  v.  Portsmouth.  88.     Ante,  §  349(d),  notes  44-51. 

G.  F.  &  C.  R.  R.,   51  N.  H.  483:  89.     See  Russell  v.  Hubbard.  59 

Mendenhall   v.    Klinck,    51    N.   Y.  111.  335. 

246.      But    St.    John    v.    Sinclair,  89a.     Marks  v.  Gartside,  16  111. 

108    Minn.    274,    122    N.    W.    164  App.  177. 

appears  to  be  contra.  89b.     Brewster    v.     Gracey.     65 

86a.     Ante,   §  349(h),  notes  55-  Kan.    137,  69   Pac.   199.     And  see 

60.  Stebbins   v.    Demorest,   138   Mich. 

87.     Bassett    v.    Maynard,    Cro.  297,  101  N.  W.  528. 
Eliz.  819;  Wickham  v.  Hawker,  7 


^  350] 


Easements.  1'--3 


a  transfer  of  the.  reversion,  and  be  enforcible  against 
an  assignee  of  the  leasehold,  as  a  covenant  running 
with  the  land,  so  as  to  justify  a  recovery  of  damages 
for  a  breach  thereof,  and  presumably  a  court  of  equity 
would  in  such  case  regard  what  is  in  terms  merely  a 
permission  to  enter  as  a  contract  for  an  easement  of 
entry  to  endure  for  the  life  of  the  lease,  and  as  such 
capable  of  specific  enforcement  by  means  of  an  in- 
junction to  prevent  any  interference  with  the  exercise 
of  the  right  of  entry  by  the  lessee  or  his  assignee. 

§  350.  Easements  in  gross  and  appurtenant.  An 
easement  ordinarily  exists  for  the  benefit  of  the  owner 
of  some  particular  land,  it  belonging  to  him  as  an  in- 
cident of  his  ownership  of  the  land.  In  other  words, 
there  is  not  only  a  ''servient"  tenement,  subject  to 
the  easement,  but  also  a  "dominant"  tenem.ent,  in 
favor  of  which  the  easement  exists.  And  the  easement, 
to  be  thus  "appurtenant"  to  a  dominant  tenement, 
must  be  such  that  it  conduces  to  the  beneficial  use  of 
such  tenement.^^  For  instance,  one  cannot  have  a  right 
of  way  over  another's  land,  appurtenant  to  one's  own 
land,  except  as  it  is  available  for  going  to  or  from 
the  latter  land. 

In  England  it  has  been  judicially  asserted  that  an 
easement  is  always  appurtenant,  that  is,  that  one  can- 
not have  an  easement  which  belongs  to  him  personal- 
ly,   apart    from    his    ownership    of    particular    land.^^ 

90.     Ackroyd  v.  Smith,  10  C.  B.  conveyance  by   the   owner   of  the 

164;  Hill  V.  Tupper,  2  Hurl.  &  C.  easement. 

121;  Linthicum  v.  Ray,  9  Wall.  It  Is  immaterial  that  the  ease- 
(U.  S.)  241;  Moore  v.  Crose,  43  ment  incidentally  benefits  land 
Ind.  30;  Wh'aley  v.  Stevens,  21  S.  other  than  the  tenement  to  which 
C.  221,  27  S.  C.  549,  4  S.  E.  145.  it  is  appurtenant.  Simpson  v.  God- 
But  in  Perry  v.  Pennsylvania  R.  manchester,  L.  R.  (1897)  App.  Cas. 
Co.,  55  N.  J.  Law  178.  26  Atl.  696.  See  10  Columbia  Law  Rev. 
829,  it  is  held  that  an  easement  at  p.  74. 

may  be  made  appurtenant  merely  91.     Rangeley    v.    Midland    Ry. 

by   language   to   that   effect   in  a  Co.,  3  Ch.  App.  306;   Ackroyd  v. 


V224: 


Eeal.  Property. 


[§  350 


It  appears,  however,  that  ovoii  there  one  niay  have  a 
riglit  analogous  to  an  easement,  a  personal  right  as  to 
the  nser  of  i^articular  laud,  not  revocable  at  the  pleasure 
of  the  land  owner,  ^-  and  whether  this  is  called  an  ease- 
ment in  gross,  a  right  analogous  to  an  easement,  or  a 
right  of  user,  appears  to  be  entirely  immaterial.  In 
this  country  the  possibility  of  the  existence  of  a  person- 
al privilege  in  the  nature  of  an  easement  or,  as  It  is  us- 
ually termed,  of  an  "easement  in  gross,"  has  been 
freely  recognized  ^^. 

The  dominant  tenement.    Tliere  is  no  necessity 


that  the  dominant  tenement,  to  which  the  easement  is 
appurtenant,    should     adjoin     the     servient     tenement, 


Smith,  10  C.  B.  164:    Hawkins  v. 
Rutter.  61  L.  J.  Q.  B.  146. 

92.  Mounsey  v.  Ismay.  3  Hurlst. 
&  C.  498 ;  Shuttleworth  v.  Le  Flem- 
ing. 19  C.  B.  N.  S.  695;  Great 
Western  Rwy.  Co.  v.  Swindon  etc. 
Rwy.  Co.,  22  Ch.  Div.  at  pp.  706, 
707. 

Ways  in  gross  are  referred  to 
in  the  earliest  English  law  dic- 
tionary. Termes  de  la  Ley  (1629) 
under  chimin:  Doddridge,  J., 
in  W.  Jones  127;  by  Chief  Baron 
Gilbert  in  his  work  on  Uses  at 
p.  281.  These  references  are  from 
an  article  by  Charles  Sweet,  Esq., 
in  24  Law  Quart.  Rev.  at  p.  260. 
A  way  in  gross  was  assumed  to 
have  a  legal  existence  In  Sen- 
house  V.  Christian.  1  Term.  Rep. 
5t".0. 

93.  Wagner  v.  Hanna,  38  Cal. 
Ill,  99  Am.  Dec.  354;  Willoughby 
V.  Lawren-e,  116  111.  1,  56  Am. 
Rep.  758.  4  N.  E.  356;  Engel  v. 
Ayer.  86  Me.  448.  27  Atl.  352:  Good- 
rich v.  Burbank,  12  Allen  (Mass.) 
459;  A?nidon  V.  Harris.  113  Mass. 
59 ;  Wilder  v.  Wheeler,  60  X.  H.  351 ; 


Shreve  v.  Mathis.  63  N.  J.  Eq.  170, 
52  Atl.  234;  Goldman  v.  Beach 
Front  Realty  Co.,  83  N.  J.  97,  83 
Atl.  777;  Mayor,  etc..  of  the  City 
of  New  York  v.  Law,  125  N.  Y. 
380,  26  N.  E.  471;  Poull  v.  Mockley, 
33  Wis.  482. 

That  an  easement  of  diverting 
water  from  or  across  another's 
land  may  be  in  gross,  see  Ring 
V.  Walker.  87  Me.  550,  33  Atl.  174; 
Goodrich  v.  Burbank,  12  Allen 
(Mass.'k  459:  Hail  v.  Ionia,  38 
Mich.  423;  Wentworth  v.  Philpot, 
60  X.  H.  193;  Talbit  v.  Joseph. 
79  Or  309,  155  Pac.  184;  Columbia 
Water  Power  Co.  v.  Columbia  Elec. 
St.  Rwy..  43  S.  C.  154.  20  S.  E. 
1002. 

In  Myers  v.  Berven.  166  Cal.  484, 
137  Pac.  260,  a  right  of  way.  not 
apparently  created  for  the  benefit 
of  any  particular  land,  was  re- 
garded as  assignable  because,  be- 
ing "distinctly  of  an  easement 
over  the  soil  upon  a  defined 
route,"  it  was  an  easement,  not  in 
gross,  but  appurtenant.  The 
opinion  does  not  explain  how  an 


§  350] 


Easements. 


1225 


which  is  siihject  to  the  easeniont,^^  though  obviously 
the  two  tenements  ordinarily  do  adjoin.  There  are,  how- 
ever, statements  to  be  f  ound,^'"'  and  at  least  one  decision,*^" 
that  a  risht  of  way  cannot  be  appurtenant  to  land 
unless  it  has  one  of  its  termini  upon  the  land  to  which 
it  is  claimed  to  be  appurtenant,  a  view  which  is  ap- 
parently not  in  harmony  with  the  statement  that  the 
dominant  and  servient  tenements  need  not  adjoin. 
Why  one  terminus  of  a  way  must  be  upon  the  domi- 
nant tenemient,  is  not  explained. 

It  has  been  asserted  that  a  way,  in  order  to  be  ap- 
purtenant to  land,  must  be ''essentially  necessary"  to  the 
enjoyment  of  the  land.**®  If  this  statement  means  an}'- 
thing  more  tlian  that  the  way  must  conduce  to  the  ad- 
vantage of  such  land,  it  is,  it  is  conceived,  erroneous. 

It  is  a  question  whether  an  easement  can  be  appur- 
tenant to  an  incorporeal  hereditament,  whether  for  in- 
stance, a  right  of  way  over  the  land  of  A  can  exist 
as  appurtenant  to,  and  for  the  purpose  of  exercising. 


easement  can  be  appurtenant  in 
the  absence  of  a  dominant  tene- 
ment. 

94.  Guthrie  v.  Canadian  Pac.  R. 
Co.,  27  Ont.  App.  64;  Graham  v. 
Walker,  78  Conn,  130,  2  L.  R.  A.  N. 
S.  983,  112  Am.  St.  Rep.  93,  61 
Atl.  98;  GoodwiUie  Co.  v.  Com- 
monwealth Electric  Co.,  241  111. 
42,  89  N.  E.  272;  Jobling  v.  Tiittle, 
75  Kan.  351.  9  L.  R.  A.  X.  S. 
960,  89  Pac.  699;  Witt  v.  Jeffer- 
son, 13  Ky.  Law  Rep.  746,  18  S. 
W.  229;  Cady  v.  Springfield  Water- 
works Co.,  ]:!4  N.  Y.  118,  31  N. 
E.  245;  Rieffler  v.  Wayne  Storage 
Water  Power  Co.,  232  Pa.  282,  81 
!A.tl.  300;  Perrin  v.  Oarfiel'l,  37 
Vt.  304. 

95.  Washburn,  Easements  (4th 
Ed.)  257  {Hcmhle);  Garrison  v. 
Rudd,  19  111.  558;  Sanxay  v.  Hun- 


ger, 42  Ind.  44.  See  Lathrop  v. 
Eisner,  93  -Mich.  599,  53  N.  W. 
791;  Kershaw  v.  Burns,  91  S.  Car. 
129,  74  S.  E.  378. 

96.  Whaley  v.  Stevens.  21  S. 
Car.  223. 

97.  That  it  need  not,  see  Gra- 
ham V.  Walker,  78  Conn.  130,  112 
Am.  St.  Rep.  93,  2  L.  R.  A.  N.  S. 
983,  61  Atl.  98;  GoodwiUie  Co. 
V.  Electric  Co.,  241  111.  42,  89  N. 
E.  272;  Witt  v.  Jefferson,  13  Ky. 
L  Rep.  746,  18  S.  W.  229;  Case 
of  Private  Road,  1  Aslini.  (Pa.) 
417. 

98.  Washburn,  P^asements,  (4th 
Ed.)  257;  Moore  v.  Crose,  4.'!  Ind. 
30;  Whaley  v.  Stevens,  27  S.  Car. 
549,  4  S.  E,  145;  Fish?r  v.  Fair,  34 
S.  Car.  203,  14  L.  R.  A.  33;!,  13 
S.    E.    470. 


1226 


EeAL.    PKOPEilTy. 


[§  350 


a  privilege  in  gross  of  fishing  or  taking  minerals  on  the 
land  of  B.  There  is  in  England  a  dictum  in  favor  of  the 
view  that  an  easement  may  thus  appertain  to  an  incor- 
poreal hereditament,^ ^'^  and  also  a  dictum  to  the  con- 
trary.^^'^ 

Transferability  of  easement.     An  easement  in 


gross  has  occasionally  been  regarded  as  susceptible  of 
voluntary  transfer,*^^  and  as  passing  by  descent,^  pro- 
vided as  least  the  language  used  in  its  creation  shows 
an  intention  to  that  effect,^  But  more  frequently  such 
an  easement  has  been  regarded  as  so  purely  personal 
to  the  original  grantee  as  to  be  incapable  of  voluntary 
or  involuntarv   transfer.^     Considerations   in   favor   of 


98a.  Hanbury  v.  Jenkins,  L.  R. 
2  Ch.  401.  There  is  an  assumption 
to  this  effect  by  Sharswood,  J.,  in 
Tinicum  Fishing  Co.  v.  Carter,  61 
Pa.  St.  21,  100  Am.  Dec.  597. 

98b.  Atty.  Gen.  v.  Copeland,  L. 
R.  (1901)  2  K.  B.  101.  See  Gale, 
Easements  (8th  Ed.)  12;  Goddard, 
Easements  (6th  Ed.)  12. 

99.  Goodrich  v.  Burbank,  12 
Allen  (Mass.)  459,  90  Am.  Dec. 
161;  French  v.  Morris,  101  Mass. 
68;  Amidon  v.  Harris,  113  Mass. 
59;  Pinkum  v.  Eau  Claire,  81  Wis. 
301,  51  N.  W.  550;  Poull  v.  Mock- 
ley,  33  Wis.  482;  Percival  v.  Wil- 
liams, 82  Vt.  531,  74  Atl.  321.  See 
Standard  Oil  Co.  v.  Buchi,  72  N. 
J.  Eq.  492,  66  Atl.  427. 

In  Engel  v.  Ayer,  85  Me.  448,  27 
Atl.  352,  such  a  right  was  regarded 
as  transferable,  apparently  on  the 
theory  that,  because  it  involved  a 
possibility,  in  the  particular  case, 
of  monopolizing  a  large  part  of 
the  servient  tenement  and  was  pe- 
cuniarily profitable,  it  was  equiv- 
alent to  a  profit  a  prendre.  This 
view  is  adopted  from  Washburn, 


Easements  (4th  Ed.)  13.  The 
same  view  is  asserted,  apparently, 
by  Walworth  Ch.,  in  Post  v.  Pear- 
sail,  22  Wend.  425;  Sharswood  J., 
in  Tinicum  Fishing  Co.  v.  Carter, 
61   Pa.   St.  at  p.  40. 

1.  Goodrich  v.  Burbank,  12 
Allen  (Mass.)  459,  90  Am.  Dec. 
161 ;  Ring  v.  Walker,  87  Me.  550, 
33  Atl.  174;  Percival  v.  Williams, 
82  Vt.  531,  74  Atl.   321. 

2.  In  Field  v.  Morris,  88  Ark. 
148,  114  S.  W.  2061  Wilder  v.  Wheel- 
er, 60  N.  H.  351,  it  was  held  that 
it  was  not  transferrable  because 
the  language  used  in  its  creation 
did  not  show  an  intention  to 
that  effect.  And  in  Lynch  v. 
White.  85  Conn.  545.  84  Atl.  326, 
it  was  held  that,  there  being  no 
words  of  limitation  extending  it 
to  heirs,  and  no  facts  showing 
such  an  intention,  it  endured  only 
for  the  life  of  the  person  in  favor 
of  whom  it  was  created. 

3.  Freed  v.  Morris,  88  Ark.  148, 
114  S.  W.  206;  Wagner  v.  Hanna. 
38  Cal.  Ill,  99  Am.  Dec.  :'.54;  Hall 
V.  Armstrong,  53  Conn.  554,  4  Atl. 


^  350]  Easements.  1227 

the  latter  view  have  been  suggested  as  follows:  "If 
such  right  be  an  inheritable  estate,  how  will  the  heirs 
take?  In  severalty,  in  joint  tenancy,  coparcenary,  or  as 
tenants  in  common?  If  not  in  severalty,  how  can  their 
interests  be  severed!  If  it  be  assignable,  what  limit 
can  be  placed  on  the  power  of  alienation?  To  whom 
and  to  how  many  may  it  be  transferred?"^  Never- 
theless it  is  somewhat  difficult  to  see  why,  if,  as  appears 
to  be  the  case,^  a  profit  in  gross  is  capable  of  passing 
by  voluntaiy  transfer  and  by  descent,  an  easement  in 
gross  should  not  be  so  capable.  The  courts  could  ef- 
fectually protect  the  owner  of  the  servient  tenement 
against  an  assigimient  to  such  a  number  of  persons 
as  unduly  to  increase  the  burden  thereon,  and  the  heirs 
might  w^ell  be  regarded  as  holding  in  that  fonn  of 
cotenancy  w^hich  exists  in  case  of  the  descent  of  land 
itself. 

An  appurtenant  easement  is  regarded  as  so  closely 
annexed  to  the  dominant  tenement  that  it  passes 
prima  facie  upon  a  conveyance  of  such  tenement  with- 
out express  mention,''^   and  regardless   of   whether  the 

113      (dictum);      Louisville      etc.  6.     Lide  v.  Hadley,  36  Ala.  627. 

R.    Co.    V.    Koelle,    104    111.    455;  76  Am.  Dec.  338;     Quiiilan  v.  Noble, 

Hoosier  Stone  Co.  v.  Malott,  130  75  Cal.  250,  17  Pac.  69;   Goodwin 

Ind.  121,  29  N.  E.  412,    {dictum);  v.    Bragaw,   87   Conn.   31,  86    Atl. 

Winston  v.  Johnson,  42  Minn.  398,  6G8;  Taylor  v.  Dyches,  69  Ga.  455; 

45  N.  W.  958   (dictum);   Tinicum  Tinker  v.  Forbes,  136  111.  221,  26 

Fishing  Co.  v.  Carter,  61  Pa.  21,  N.  E.  503;  Moore  v.  Grose,  43  Ind. 

100  Am.  Dec.  597;  Comm.  v.  Zim-  30;    Cassens  v.  Meyer,  154    Iowa, 

merman,    56    Pa.    Suiper    Ct.    311;  187,    134    N.    W.    543     (warranty 

Cadwalader  v.  Bailey,  17  R.  I.  495,  deed) ;  Wendell  v.  Heim,  87  Kan. 

14  L.  R.  A.  300,  23  Atl.  20;  Fisher  136,    123   Pac.   869;    Hammond   v. 

V.   Fair,  34   S.  Car.  203,  13  S.  B.  Eads,  146  Ky.  162,  142  S.  W.  379; 

470;  Kershaw  V.  Burns,  91  S.  Car.  Dority    v.    Dunning,    78   Me.    381, 

129,  74  S.  E.  378;    Salem  Capital  6  Atl.  6;    Douglass  v.  Riggin,  123 

Flour  Mills  V.  Stayton  Water  Ditch  Md.   18,   90    Atl.   1000;    Barnes   v. 

&  Canal  Co.  (C.  C.)  33  Fed.  14G.  Lloyd,   112  Mass.   224;    Willets  v. 

4.  Boatman  v.  Lasley,  23  Ohio  Langhaar,    212    Mass.    573,    99    N. 
St.  614,  per  Mcllvaine,  J.  E.  466;  Dulce  Realty  Co.  v.  Stead 

5.  Post,  §  382,  note  19.  Realty   Co.,    245    Mo.    417,    151    S. 


1228  Keal  Peoperty.  [§  350 

conveyance  refers  to  ''appurtenances."'  Likewise  a  re- 
covery in  ejectment  of  the  dominant  tenement  involves 
a  recovery  of  an  easement  appurtenant  thereto/^ 

Since  an  easement  appurtenant  is  intended  to  be 
exercised  only  for  the  benefit  of  and  in  connection  with 
the  dominant  tenement,  it  cannot  be  separated  there- 
from by  its  transfer  to  a  person  other  than  the  owner 
of  such  tenement.^  Such  a  separation  would  involve 
its  conversion  into  an  easement  in  gross. 

Duration  of  easement.  An  appurtenant  ease- 
ment usually  exists  in  favor  of  one  having  an  estate  in 
fee  simple  in  the  dominant  tenement,  but  in  so  far  as 
the  easement  is  intended  to  endure  so  long  only  as 
the  purpose  of  its  creation  can  be  regarded  as  still 
existent,^*^  the  possible  duration  of  the  easement  cor- 
responds to  that  of  an  estate  in  fee  determinable  rather 
than  to  that  of  an  estate  in  fee  simple.  And  occas- 
sionally  the  language  of  the  grant  creating  an  ease- 
ment   expressly    provides    that    it    is    to    endure    only 

W.    415;    Sweetland   v.    Olseii,    11  &  Aid.  661. 

Mont.  27,  27  Pac.  339;   Spaulding  9.     Ackroyd  v.  Smith,  10  C.  B. 

V.  Abbott,  55  N.  H.  423;  Voorhees  164;    Moore  v.  Crose,  43  Ind.  30; 

V.  Burchard,  55  N.  Y.  58;   Shields  Baker  v.  Kenney,  145   Iowa,   638. 

V.  Titus,  46  Ohio  St.  528,  22  N.  E.  139   Am.   St.    Rep.    456,   12    N.   W. 

II'I;  Jackson  v.  Trullinger,  9  Ore.  901;   Ring  v.  Walker,  87  Me.  550, 

393;  Ruhnke  v.  Aubert,  58  Ore.  6,  33  Atl.  175;    Wilson  v.  Ford,  209 

113  Pac.  38;    Rhea  v.  Forsyth,  37  N.   Y.   186,   102   N.   E.   614;    Wood 

Pa.    St.    503,    78    Am.    Dec.    441;  v.  Woodley,  160  N.  C.  17,  41  L.  R. 

Chambersburg    Shoe    Mfg.    Co.   v.  A.    (N.    S.)    Ii:i7,    75    L.    E    lU: 

Cumberland  Valley  R.  Co.,  240  Pa.  Boatman    v.    Lasley,    23    Ohio    St. 

St.  519,  87  Atl.  968;    Re  Barhous-  614;    Cadwalader  v.  Bailey,  17  R. 

en,  142  Wis.  292,  124  N.  W.  649.  I.    495,    14    L.    R.    A.    300.    23    Atl. 

7.  Shelby  v.  Chicago  &  E.  I.  R.  20;  Reise  v.  Enos.  76  Wis.  634,  8 
Co.     143    111.    385,    32    N.    E.    438;  L.  R.  A.  617,  45  N  W.  414. 
Agnew   V.   Pawnee    City,    79    Neb.  That  the  attempted  transfer  of 
603,    113    N.    W,.    236;     Smith    v.  the  easement  apart  from  the  dom- 
Garbe,  86  Neb.  94,  124  N.  W.  921.  inant  tenement  does  not  extinguish 

8.  Callaway     v.     Forest     Park  the    easement,    see    a    suggestive 
Highlands  Co.,  113  Md.  1,  77  Atl.  note  in  20  Harv.  Law  Rev.  136. 
141;  Crocker  v.  Fothergill,  2  Barn.  10.     Post,  §  372. 


^  350] 


Easements. 


1229 


until  a  certain  event  occurs.^ ^  An  appurtenant  ease- 
ment may  also,  as  well  as  an  easement  in  gross,  be 
for  life,  as  having  been  intended  to  endure  only  so 
long  as  the  grantee's  life  estate  in  the  dominant  tene- 
ment endures,^-  or  as  having  been  created  by  one  having 
only  a  life  estate  in  the  land  in  which  it  is  created.  The 
easement  may  be  for  years  only.^^ 

Determination  of  class.  Whether,  in  any  par- 
ticular case,  an  easement  created  by  grant  is  an 
easement  appurtenant  or  an  easement  in  gross,  is  to  be 
determined  by  the  language  of  the  grant  as  construed  in 
the  light  of  tiie  surrounding  circumstances.^"''  That  the 
easement  is  of  value  to  particular  land  owned  by  the 
grantee  of  the  easement,^*  or  that  it  is  valueless  except 
as   exercised  for   the  benefit   of   such   land,^^   tends   to 


11.  See  e.  g.  Arbaugh  v.  Alex- 
ander, 164  Iowa,  635,  146  N.  W. 
747;  Wooding  v.  Michael,  89  Conn. 
704,   96    Atl.    170. 

12.  See  Hoffman  v.  Savage,  15 
Mass.  130;  Goodall  v.  Godfrey,  53 
Vt.  219,  38  Am.  Rep.  671;  Pym  v. 
Harrison,  33  Law  Times,  796. 

13.  Davis  V.  Morgan,  8  B.  &  C. 
8.  See  Booth  v.  Alcock,  L.  R.  8 
Ch.  663;  Newhoff  v.  Mayo,  48  N. 
J.  Eq.  619,  27  Am.  St.  Rep.  455,  23 
Atl.  265. 

13a.  Hopper  v.  Barnes,  113  Cal. 
636,  45  Pac.  874;  Durkee  v.  Jones, 
27  Colo.  159,  60  Pac.  618;  Blan- 
chard  v.  Maxson,  84  Conn.  429,  80 
206;  Cassens  v.  Meyer,  154  Iowa, 
187,  134  N.  W.  543;  Hammond  v. 
Eads,  146  Ky.  162,  142  S.  W.  379; 
Dennis  v.  Wilson,  107  Mass.  591; 
Kent  Furniture  Mfg.  Co.  v.  Long, 
111  Mich.  383,  69  N.  W.  657; 
Liederding  v.  Zignego,  77  Minn. 
421,  77  Am.  St.  Rep.  677,  80  N.  W. 
360;  Smith  v.  Garbe,  86  Neb.  94, 
124  N.  W.  921;  Ruhnke  v.  Aiibert, 
2  R.  P.— i 


53  Ore.  6,  113  Pac.  38;  Cadwal- 
ader  v.  Bailey,  17  R.  I.  495,  23 
Atl.  20. 

14.  Webb  V.  Jones,  163  Ala.  637, 
50  S.  887;  Durkee  v.  Jones,  27 
Colo.  159,  60  Pac.  618;  Blancliard 
V.  Maxson,  84  Conn.  429,  80  Atl. 
206;  Cherokee  Mills  v.  Standard 
Cotton  Mills,  138  Ga.  856,  76  S. 
E.  373;  Goodwillie  Co.  v.  Com- 
monwealth Electric  Co.,  241  111. 
42,  89  N.  E.  272;  Cassens  v.  Meyer, 
154  Iowa,  181,  134  N.  W.  543; 
Smith  v.  Ladd,  41  Me.  314;  Green- 
wood Lake  &  P.  J.  R.  Co.,  v.  New 
York  &  G.  L.  R.  Co.,  134  N.  Y. 
435,  31  N.  E.  874;  Smith  v.  Garbe, 
86  Neb.  91,  136  Am.  St.  Rep.  674, 
20  A.  &  E.  Ann.  Cas.  1209,  124 
N.  W.  921 ;  Ruffin  v.  Seaboard  Air 
Line  Rwy..  151  N.  Car.  330,  66 
S.  E.  317;  Reise  v.  Enos,  76  Wis. 
634,  8  L.  R.  A.  617,  45  N.  W. 
414;  Jones  v.  Island  Creek  Coal 
Co.,  79  W.  Va.   532,  91   S.  E.  391. 

15.  Hopper  v.  Barnes,  113  Cal. 
636,     45     Pac.     874;      Schmidt     v. 


1230 


Real.  Pboperty. 


"§  350 


sliow  that  it  is  appurtenant  to  such  land.  The  fact 
tnat,  after  the  creation  of  the  easement,  it  was  exercised 
oxrhisively  in  connection  with  particular  property  be- 
Ionising  to  tlie  grantee  of  the  easement  would  seem  also 
to  tend  to  indicate  that  it  is  appurtenant  thereto.^® 
That  the  grant  of  an  easement  is  in  terms  in  favor  of 
one,  liis  heirs  and  assigns,  does  not  tend  to  show  that 
it  is  personal  rather  than  appurtenant,^'  nor,  on  the 
other  hand,  does  the  omission  of  such  words  ordinarily 
have  such  an  effect. ^^  That  it  is  granted  to  one  for  life 
or  during  his  occupation  of  particular  land  has  been 
r(»oai-c]ed  as  showing  an  intention  to  create  a  mere  per- 
sonal right. ^'^'^ 

The    courts    tend   to    regard    an    easement    as    ap- 
purtenant rather  than  as  in  gross,*"  and  accordingly,  in 


Brown,  226  111.  590,  80  N.  E.  1071; 
Cassens  v.  Meyer,  154  Iowa,  187. 
134  N.  W.  543;  Dennis  v.  Wilson, 
107  Mass.  591;  Lathrop  v.  Elsnor. 
93  Mich.  593,  53  N.  W.  791;  Lid- 
gerding  v.  Zignego,  77  Minn.  421, 
77  Am.  St.  Rep.  677,  80  N.  W. 
360;  Cadwalder  v.  Bailey,  17  R. 
I.  495,  14  L.  R.  A.  300,  23  Atl. 
20. 

16.  Ruhnke  v.  Aubert,  58  Ore. 
6,  113  Pac.  38;  Wesley  v.  M.  N. 
Cartier  &  Sons  Co.,  30  R.  I.  40:'.. 
75  At.  626;  L-dgerding  v.  Zigneg"^, 
77  Minn.  421,  77  Am.  St.  Rep.  677, 
80  N.  W.  360.  And  see  Winston 
V.  Johnson,  42  Minn.  398,  45  N. 
W.  958.  But  see  Wentworth  v. 
Philpot,   60   X.   H.    193. 

17.  Callaway  v.  Forest  Park 
Highlands  Co.,  113  Md.  1.  77  Atl. 
141;  Parsons  v.  New  York  N.  H. 
&  H.  R.  Co.,  216  Mass.  269,  103 
N.  E.  693;  Mitchell  v.  D'Olier,  68 
N.  J.  L.  375,  59  L.  R.  A.  949, 
53  Atl.  467.  Rather  does  such  lan- 
guage indicate  an  intention  that  the 


easement  shall  be  appurtenant. 
Hopper  V.  Barnes,  113  Cal.  636,  45 
Pac.  874;  Moll  v.  McCauley,  83 
Iowa,  677,  50  N.  W.  216:  French 
V.  Williams,  82  Va.  462,  4  S.  E. 
591. 

18.  Dennis  v.  Wilson.  107  Mass. 
591;  Teachout  v.  Capital  Lodge 
etc.,  128  Iowa,  384,  104  N.  W.  440; 
Cleveland  C.  C.  &  St.  L.  Rwy.  Co. 
V.  Griswold,  51  Ind.  App.  497,  97 
N.  E.  1030;  United  States  Pipe 
Line  Co.  v.  Delaware  L.  &  W. 
R.  Co.,  62  N.  J.  L.  254.  42  L. 
R.  A.  572.  41  Atl.  759:  Contra 
Comm.  V.  Zimmerman,  56  Pa. 
Super.  311;  Wilder  v.  Wheeler.  60 
N.  H.  351.  Compare  Lidgerding  v. 
Zignego,  77  Minn.  421.  77  Am.  St. 
Rep.  677,  SO  N.  W.  360. 

18a.  Estabrooks  v.  Estabrooks, 
91  Vt.  515,  101  Atl.  584. 

19.  McMahan  v.  Williams.  79 
Ala.  288;  Gardner  v.  San  Gabriel 
Valley  Bank,  7  Cal.  App.  106.  9;^ 
Pac.  900;  Blanchard  v.  Maxson, 
84  Conn.  489,  80  Atl.  206;    Chero- 


§  350] 


Easements. 


1231 


the  ordinary  case,  a  reservation  of  an  easement  on  a 
conveyance  of  part  of  one's  land  will  be  regarded  as  of 
an  easement  appurtenant  to  the  land  retained/^'"'  while 
an  easement  in  the  land  retained,  created  by  the  in- 
strument by  which  land  is  conveyed,  will  ordinarily  be 
appurtenant  to  the  land  conveyed.^^'^  But  a  different 
view  has  been  indicated  in  one  case,  to  the  eifect  that  if 
the  grant  of  an  easement  is  by  a  clause  entirely  separate 
from  that  by  which  the  land  is  conveyed,  though 
by  the  same  instrument,  it  is  to  be  regarded  as  in 
gVoss.^^''  In  one  case  the  fact  that  the  grant  of  the 
easement  was  on  the  sarnie  day  on  which  land  had  been 
granted  was  regarded  as  showing  that  it  was  appurte- 
nant to  such  land/^*^ 

The  fact  that  one  to  whom  there  was  granted  the 
privilege  of  taking  water  from  another's  land  had  a 
life  estate  only  in  neighboring  land  has  been  regarded 
as   tending   to    show   that    the    privilege    was    not    ap- 


kee  Mills  v.  Standard  Cotton  Mills. 
138  Ga.  856,  76  S.  E.  373;  Whit- 
aker  v.  Harding.  256  111.  148,  99 
N.  E.  945;  Lucas  v.  Rhodes,  48 
Ind.  App.  211,  94  N.  E.  914;  Pres- 
byterian Church  of  Osceola  v.  Har- 
ken,  177  Iowa,  195,  158  N.  W. 
692;  Hammond  v.  Eads.  146  Ky. 
162,  142  S.  W.  379;  Willets  v. 
Langhaar,  212  :\Iass.  573,  99  N.  E. 
466;  Lidgerding  v.  Zign  go,  77 
Minn.  421.  77  Am.  St.  Rep.  677, 
80  N.  W.  3G0:  Ruhnke  v.  Aubert, 
58  Ore.  6,  113  Pac.  38;  Smith  v. 
Garbe,  86  Neb.  94,  124  N.  W.  921; 
WSlson  V.  Ford,  209  N.  Y.  186, 
102  N.  E.  614;  Ruhnke  v.  Aubert, 
58  Ore.  6,  113  Pac.  38;  Calwalader 
V.  Bailey,  17  R.  I.  495,  14  L.  R.  A. 
300,  23  Atl.  20;  French  v.  Wil- 
liams, 82  Va.  462,  4  S.  E.  591; 
Spensley  v.  Valentine,  34  Wis.  154. 
But  see  Wilder  v.  Wheelor,  60  N. 


H.  351;  Comm  v.  Zimmerman,  56 
Pa.  Super.  311. 

19a.  Winthrop  v.  Fairbanks,  41 
Me.  307;  Smith  v.  Ladd,  41  Me. 
316;  Bowen  v.  Conner,  6  Cush. 
(Mass.)  132;  Dennis  v.  Wilson, 
107  Mass.  591;  Lathrop  v.  Eisner, 
93  Mich.  599;  Winston  v.  .Johnson, 
4?  Minn.  398,  45  N.  W.  958;  Pres- 
byterian Church  of  Osceola  v. 
Harken,  177  Iowa,  195,  158  N.  W. 
692. 

19b.  Kuecken  v.  Voltz,  110  111. 
264;  Stearns  v.  Mullen.  4  Gray 
(Mass.)  151;  Blood  v.  Millard,  172 
Mass.  65,  51  N.  E.  527;  Gunson 
V.  Healy,  100  Pa.  42;  Reise  v. 
Enos,  76  Wis.  634,  8  h.  R.  A.  617, 
45   X.  W.   414. 

19c.  Shreve  v.  Mathis,  63  N. 
J.  Eq.  170.  52  Atl.  234. 

19d.  Moll  V.  McCauley,  83  Iowa. 
677.   50   N.   W.   216. 


1232  Eeal  Pkoperty.  [§  350 

pnrtenaiit  to  such  land.^^^  In  tlie  same  state  it  has 
been  said  that  the  fact  that  the  gift  of  a  right  of  way 
to  one  who  owned  land  in  fee  was  expressed  to  be  for 
life  only  might  indicate  that  the  way  was  in  gross  and 
not  appurtenant  to  his  land.^'^^  If  the  language  of  the 
grant  or  reservation  of  an  easement  is  such  as  itself 
to  show  that  the  easement  was  created  solely  for  ex- 
ercise in  connection  with  particular  land,  as  in  the 
case  of  a  right  of  way  specified  to  be  to  and  from  such 
land,  it  is  appurtenant.  ^^^ 

The  fact  that  the  instrument  by  which  a  right  of 
way  is  created  fails  to  refer  in  any  way  to  neighboring, 
land  owned  by  the  beneficiary  of  the  grant  has  occasion- 
ally been  regarded  as  showing  that  the  right  is  not 
intended  to  be  appurtenant  to  such  land,  but  is  in 
gross. ^^'^  But  there  are  a  greater  number  of  decisions 
which  assert,  expressly  or  by  implication;  a  contrary 
view,  to  the  effect  that  the  dominant  tenement  need  not 
be   expressly   referred  to.^** 

In  the  case  of  an  easement  by  prescription,  whether 
the  easement  is  appurtenant  or  in  gross  is  to  be 
determined  by  the  consideration  whether  the  user 
of  the  servient  tenement  throughout  the  prescriptive 
period  was  for  the  benefit  of,  and  in  connection  A\'ith, 

19e.     Amidon     v.     Harris,     113  4  S.  E.  591;    Thorpe  v.  Brumfitt, 

Mass.  59.  L.  R.  8  Ch.  650. 

19f.     Dennis     v.     Wilson,      107  19h.     Wag'ner  v.  Hanna.  .38  Cal. 

Mass.  591.     See  Lidgerding  v.  Zig-  ill,  99  Am.  Dec.  354;   Metzger  v. 

nego,    77    Minn.    421,    77   Am.    St.  Holwick,    17    Oliio    Circ.    Ct.    605. 

Rep.    677,    80    N.    W.    360;     Mc-  20.     Hopper  v.  Barnes,  113  Cal. 

Daniel    v.    Walker,    46    S.    C.    43,  636,  45  Pac.  874;  Durkee  v.  Jones, 

24  S.  E.  378.  27    Col.    159,    60    Pac.    618;    Gold- 

19g.     Lide    v.    Hadley,    ?S    Ala.  stein  v.  Raskin,  271,  111.  249,  111 

627,  76  Am.  Dec.  338;   MendeU  v.  N.  E.  91   (distinguishing  Garrison 

Delano,     7     Mete.     (Mass.)     176;  v.    Rudd,    19    HI.    558,    as    having 

George  v.  Cox,  114  Mass.  382;  Val-  been  at  law);    Dennis  v.  Wilson, 

entine  v.  Schreiber,  3  N.  Y.  App.  107     Mass.     591;     Salem     Capital 

Div.    235,    38    N.    Y.    Supp.    417;  Flour  Mills  v.  Stayton  Water  Ditch 

Gunson  v.  Healy,  100  Pa.  St.  42;  &  Canal  Co.,  33  Fed.  146. 
French  v.    Williams,   82   Va.    462, 


§  351]  Easements.  123o 

one  particular  piece  of  land,  and  also  of  the  consider- 
ation of  its  utility  in  connection  wdth  sucli  land  or  its 
lack  of  utility  apart  therefrom.^i 

A  right  of  user,  given  to  one  of  the  parties  to  a 
partition  of  land,  over  the  portion  allotted  to  another 
of  such  parties,  has  been  regarded  as  appurtenant  to 
the  portion  allotted  to  the  former.- - 

There  are  occasional  decisions  to  the  effect  that  one 
may  acquire,  by  grant  or  reservation,  an  easement  to  be 
exercised  in  connection  with  and  for  the  benefit  of  par- 
ticular land  which  he  does  not  own,  in  which  case,  it 
seems,  the  easement  is  in  gross  until  he  acquires  such 
land,  and  if  and  when  he  acquires  it,  the  easement  be- 
comes appurtenant  to  the  land.^^* 

§  351.  Light  and  air.  As  before  stated,  the  owner 
of  land  has  no  "natural  right"  to  light  or  air,  and  can- 
not complain  that  either  has  been  cut  off  by  the  erection 
of  buildings  on  adjoining  land.-"'  An  owner  of  land  may, 
however,  acquire,  by  grant  or  its  equivalent,  a  right  to 
have  light  and  air  enter  a  particular  window  or  other 
aperture,  free  from  interruption  by  the  owner  of  ad- 
jacent land,  and  such  a  right  constitutes  an  easement 
in  his  favor.-^ 

21.  Schmidt  v.  Brown,  226  111.       note  29. 

590,  80  N.  E.  1071.  24.     Turner  v.  Thompson.  58  Ga. 

22.  KarmuUer  v.  Krotz,  18  268,  24  Am.  Rep.  497;  Keating  v. 
Iowa,  352;  Davenport  v.  Lamson,  Springer,  146  111.  481,  22  L.  R.  A. 
21  Pick.  (Mass.)  72;  Bowen  v  544,  37  Am.  St.  Rep.  175,  34  N. 
Conner,  6  Cush.  (Mass.)  132.  See  E.  805;  White  v.  Bradley.  66  Me. 
Hopper  V.  Barnes,  113  Cal.  636,  254;  Janes  v.  .lenkins,  34  Md.  1, 
45  Pac.  874.  6   Am.    Rep.   300;    Story   v.   Odin. 

22a.     North  British  Railway  Co.  12    Mass.    157,    7    Am.    Dec.    46; 

V.  Park  Yard  Co.  (1898)  App.  Cas.  Brooks  v.  Reynolds,  106  Mass.  31; 

643;  Amidon  v.  Harris.  113  Mass.  Greer  v.  Van  Meter,  54  N.  J.  Eq. 

59;    Percival   v.   Williams,   82   Vt.  270,  33  Atl.  794;  Lattimer  v.  Liv- 

531,    74    Atl.    321;    Kalmowski    v.  ermore,     72     N.     Y.     174;     Weig- 

Jacobowski,  52  Wash.  359,  100  Paf.  mann  v.   Jones,    163   Pa.   St.    330, 

852.  30  Atl.  198.     As  to  air,  see  Chas- 

23.  Ante,  §  336,  note  4d,  §  338,  tey  v.  Ackland    (1895)   2  Ch.  389, 


123-1:  Ee.\l  Peoperty.  [§  352 

While  the  owner  of  land  is  entitled  to  have  the  air 
diffused  over  his  land  free  from  pollution  by  any  use 
made  of  neighboring  land,  this  being  a  natural  right, 
an  infringement  of  which  constitutes  a  nuisance,-^  the 
OAvner  of  the  neighboring  land  may  acquire,  by  grant  or 
prescription,  an  easement  consisting  of  the  right  to  make 
such  injurious  use  of  his  land,  or,  as  it  is  sometimes  said, 
he  may  acquire  a  right  to  maintain  a  nuisance  involving 
the  pollution  of  air.^^ 

§  352.  Waters  and  watercourses.  The  mutual  rights 
of  adjoining  or  neighboring  owners  in  regard  to  water 
have  been  previously  considered.^^*  These  rights  may, 
however,  be  suspended  or  modified  in  favor  of  the  owner 
of  one  piece  of  land  as  against  another  by  the  creation 
of  an  easement.  So,  the  owner  of  land  upon  a  natural 
stream  may  acquire  from  the  owner  of  land  lower  down 
on  the  same  stream,  by  grant  or  prescription,  the 
privilege  of  polluting  the  stream,  or  of  appropriating 
what  would  otherwise  be  an  unreasonable  amount  of 
water,^^  or  he  may  acquire  the  privilege  of  obstructing 
the  flow  of  the  stream  so  as  to  flood  the  land  of  an 

(1897)     App.    Cas.    155;     PoHock,  v.  Bessey,  49  Me.  539.  77  Am.  Dec. 

Torts  (6th  Ed.)  399,  note.  271;   Warner  v.  Cushman,  82  Me. 

25.  See  anfe,  §  338.  168,    19    AtU    159;     Washburn    & 

26.  Goddard,  Easements,  265;  2  Moen  Mfg.  Co.  v.  Salisbury,  152 
Wood,  Nuisances,  §  704  et  seq.  Mass.  346,  25  N.  E.  724;  Smith  v. 
Sturges  V.  Bridgman,  11  Ch.  Div.  City  of  Sedalia.  152  Mo.  283,  48 
852;  Dana  v.  Valentine,  5  Mete.  L.  R.  A.  711,  53  S.  W.  907;  Lov- 
(Mass.)  8;  Matthews  v.  Stillwater  erin  v.  Walker,  44  N.  H.  489; 
Gas  etc.  Co.,  63  Minn.  493,  65  N.  Holsman  v.  Boiling  Spring  Bleach- 
W.  947.  ing   Co.,    14    N.    J.    Eq.    335,    346; 

26a.     Ante,  §  339.  Provost   v.    Calder,    2    Wend.    (N. 

27.  Stockport  Waterworks  Co.  Y.)  517;  Winchester  v.  Osborne,  61 
V.  Potter,  3  Hurl.  &  C.  300;  Wood  N.  Y.  555;  Geer  v.  Durham  Water 
V.  Waud,  3  Exch.  748;  Tyler  v.  Co.,  127  N.  C.  349,  37  S.  E.  474; 
Wilkinson,  4  Mason,  397,  Fed.  Cas.  Talbot  v  Joseph.  78  Ore.  308,  155 
No.  14312;  Village  of  Dwight  v.  Pac.  184;  McCallum  v.  German- 
Hayes,  150  111.  273,  41  Am.  St.  town  Water  Co.,  54  Pa.  St.  40; 
Rep.    367,    37   N.    E.    218;    Crosby  Messinger's    Appeal,    109    Pa.    St. 


^  352] 


Easements. 


1235 


upper  proprietor.2^  So,  land  may  be  subject  to  an  ease- 
ment precluding-  the  owner  thereof  from  cutting  off 
percolating  water,  to  the  detriment  of  a  neighboring 
owner,  though  otherwise  he  has  the  privilege  of  doing 
so  f^  or  an  easement  may  exist  modifying  the  rights  of 
adjoining  owners  as  to  the  discharge  or  flow  of  sur- 
face waters.''*' 

Right  to  take  water  from  spring.     Not  infre- 


quently the  owaier  of  land  on  which  there  is  a  spring  or 
well  grants  to  a  neighboring  land  owner  the  privilege  of 


285,  4  Atl.  162;  Olney  v.  Fenner, 
2  R.  I.  211,  57  Am.  Dec.  711; 
Rood  V.  Johnson,  26  Vt.  64. 

A  privilege  in  a  riparian  owner 
to  divert  or  pollute  the  water  of 
the  stream  is  not  strictly  an  ease- 
ment in  the  land  of  the  owner 
who  suffers  by  such  diversion  or 
pollution,  it  has  been  said,  since 
it  involves  no  use  of  the  latter's 
land,  or  restriction  of  its  use. 
Cockburn,  C.  J.,  in  Mason  v. 
Shrewsbury  &  H.  Ry  Co.,  L.  R. 
6  Q.  B.  578;  Geer  v.  Durham 
Water  Co.,  127  N.  C.  349;  37  S.  E. 
474.  It  does,  however,  involve  the 
privilege  of  doing  an  act  to  the 
detriment  of  such  land,  that  is,  of 
dspleting  the  water  flowing 
thereby,  and  the  statement  refer- 
red to  would  seen  unduly  to  nar- 
row the  definition  of  an  easement. 
See  article  by  Professor  Wesley  N. 
Hohfield,  27  Yale  Law  Journ.  66. 

28.  Wright  v.  Howard,  1  Sim. 
&  S.  190;  Central  Georgia  Power 
Co.  V.  Cornwell,  141  Ga.  843,  82 
S.  E.  24;'.;  Ballard  v.  Struckman, 
123  m.  636,  14  N.  E.  682;  Brook- 
ville  &  M.  Hydraulic  Co.  v.  Butler, 
91  Ind.  134;  Williams  v.  Nelson,  2:? 
Pick.  (Mass.)  141,  34  Am.  Dec. 
45;    Tourtellot  v.  Phelps,   4   Gray 


(Mass.)  870:  Turner  v.  Hart,  71 
Mich.  128,  15  Am.  St.  Rep.  243, 
38  N.  W.  890;  Cornwell  Mfg  Co.  v. 
Swift,  89  Mich.  503,  50  N.  W.  1001; 
Swan  V.  Munch,  65  Minn.  500,  35 
L.  R.  A.  743,  60  Am.  St.  Rep. 
491,  67  N.  W.  1022;  Winnipiseo- 
gee  Lake  Co.  v.  Young,  40  N.  H. 
420;  Tabor  v.  Bradley,  18  N.  Y. 
113,  72  Am.  Dec.  498;  State  v. 
Suttle,  115  N.  C.  784,  20  S.  E. 
725;  Bobo  v.  Wolf,  18  Ohio  St. 
463;  Campbell  v.  McCoy,  31  Pa. 
St.  263;  Weed  v.  Keenan,  60  Vt. 
74,  6  Am.  St.  Rep.  93,  13  Atl. 
804. 

29.  Chasemore  v.  Richards,  7 
H.  L.  Cas.  349,  2  Gray's  Cas.  12; 
Whitehead  v.  Parks,  2  Hurl.  &  N. 
870;  Johnstown  Cheese  Mfg.  Co. 
V.  Veghte,  69  N.  Y.  16,  25  Am.  Rep. 
125;  Davis  v.  Spaulding,  157  Mass. 
431,  19  L.  R.  A.  102,  32  N.  E. 
650. 

30.  Wright  v.  Willams,  1  Mees. 
&  W.  77;  Gregory  v.  Bush,  64 
Mich.  37,  8  Am.  St.  Rep.  797, 
31  N.  W.  90;  Phinizy  v.  City 
Council  of  Augusta,  47  Ga.  260; 
Ross  V.  Mackeney,  46  N.  J.  Eq.  140, 
18  Atl.  685;  Louisville  &  N.  Ry. 
Co.  V.  Mossman,  90  Tenn.  157,  25 
Am.  St.  Rep.  670,  IG  S.  W.  64. 


1236  Real  Property.  [§  353 

taking  water  therefrom,  usually  by  means  of  a  pipe  or 
concluit.^°^  In  such  a  case,  if  the  water  can  be  regarded 
as  belonging  to  the  owner  of  the  land,  the  grantor,  there 
is,  it  appears,  the  grant  of  a  profit  a  prendre,^^^  while  if 
the  water  is  pi(hlici  juris,  that  is,  belongs  to  no  one,  the 
grant  is  merely  of  the  privilege  of  taking  it  across  the 
grantor's  land,  of  an  easement  merely. 

§  353.    Artificial  water  courses  and  drains.     One 

may,  for  the  purpose  of  procuring  water  from  a  stream 
or  other  source  of  supply,  have  the  privilege  of  having 
water  flow  to  his  land  over  intervening  land  belonging 
to  another,  in  an  aqueduct  or  other  artificial  channel, 
and  such  a  privilege  constitutes  an  easement  in  the 
intervening  land.^^  Likewise  one  may  have  an  easement 
consisting  (primarily)  of  the  privilege  of  discharging 
surface  or  waste  water,  or  sewage,  through  or  on  an- 
other's land.22 

In  case  the  privilege  of  having  water  thus  pass  to 
or  from  one's  own  land  over  or  through  another's  land 

30a.  See  e.  g.  Bissell  v.  Grant,  Va.  474. 
35  Conn.  288;  Rollins  v.  Blackden,  30b.  Post,  §  381. 
112  Me.  459,  92  Atl.  521;  Good-  31.  Taylor  v.  Corporation  of  St. 
rich  V.  Burbank,  12  Allen  (Mass.)  Helens.  6  Ch.  Div.  264;  Prescott  v. 
459;  Johnson  v.  Knapp,  146  Mass.  White,  21  Pick.  (Mass.)  341;  Legg 
70,  15  N.  E.  134;  Howard  v.  Brit-  v.  Horn,  45  Conn.  409;  Cole  v. 
ton,  67  N.  H.  484,  41  Atl.  269;  Bradbury,  86  Me.  380,  29  Atl.  1097; 
Toothe  V.  Bryce,  50  N.  J.  Eq.  Watkins  v.  Peck,  13  N.  H.  360,  40 
589,  25  Atl.  182;  Paine  v.  Chand-  Am.  Dec.  156;  Cannon  v.  Atlantic 
ler,  134  N.  Y.  385,  19  L.  R.  A.  Coast  Line  R.  Co.,  97  S.  C.  233, 
99,  32  N.  E.  18;  Woodring  v.  Hoi-  81  S.  E.  476. 
lenbach,  202  Pa.  St.  65,  51  Atl.  318;  32.  Wood  v.  Saunders,  10  Ch. 
Chase  v.  Cram,  39  R.  I.  83,  97  Atl.  App.  582;  Humphries  v.  Cousins, 
481;  Vermont  Central  R.  Co.,  v.  2  C.  P.  Div.  239;  Brown  v.  Honey- 
Hills,  23  Vt.  681;  Corevo  v.  Hoi-  field,  139  Iowa,  414,  116  N.  W. 
man,  82  Vt.  34,  71  Atl.  718;  731;  White  v.  Chapin,  12  Allen 
Wheelock  v.  Jacobs,  70  Vt.  162,  67  (Mass.)  516;  Larsen  v.  Peterson. 
Am.  St.  Rep.  659,  43  L.  R.  A.  53  N.  J.  Eq.  88,  30  Atl.  1094; 
105,  40  Atl.  41;  Diffendal  v.  Vir-  Treadwell  v.  Inslee,  120  N.  Y.  458, 
ginia  M.  Ry.  Co.,  86  Va.  459,  10  24  N.  E.  651;  Sanderlin  v.  Baxter, 
S.  E.  536;  Warren  v.  Syme,  7  W.  76  Va.  299,  44  Am.  Rep.  165. 


<^  353]  Easements.  1-37 

exists  in  connection  with  a  supply  of  water  of  a  tempo- 
rary character  merely,  the  watercourse  thus  formed 
must  necessarily  be  regarded  as  artificial  rather  than 
natural.  When  how^ever  the  source  of  supply  is  per- 
manent in  character  the  question  as  to  whether  the  water 
course  is  to  be  regarded  as  natural  or  artificial  is  by  no 
means  a  simple  one.  As  before  remarked,^^^  if  water 
flows  from  a  permanent  source  of  supply  it  might  well 
be  regarded  as  a  natural  watercourse  through  the  entire 
extent  of  its  flow,  although  it  flows  in  part  through  an 
artificial  channel,  provided  such  channel  is  of  a  per- 
manent character.  For  instance,  when  the  water  of  a 
natural  watercourse  is  permanently  diverted  in  ])art  by 
the  construction  of  a  mill  race  or  ''cut  off,"  the  flow 
of  water  in  this  new  channel  might  well  be  regarded  as 
part  of  a  natural  watercourse.  The  cases  however  tend 
to  regard  such  flow  as  constituting,  originally  at  least, 
an  E^rtificial,  rather  than  a  natural  watercourse^^-* 

Any  rights  or  privileges  as  to  the  use  of  the  water 
of  an  artificial  watercourse  in  favor  of  the  owners  of 
land  thereon  or  thereunder,  even  though  bearing  a  super- 
ficial resemblance  to  the  "natural  rights"  of  riparian 
land  owners,  are  in  the  nature  of  easements,"^  and 
there  have  been  a  number  of  decisions  in  connection 
with  the  question  of  the  existence  of  such  easements. 
As  before  stated,  in  some  cases  owners  of  land  abutting 
on  an  artificial  watercourse  have  been  regarded  as  ac- 
quiring, by  reason  of  the  passage  of  time,  on  the  tlieory, 
it  seems,  of  acquiescence  or  estoppel,  rights  as  to  the 
water  of  the  watercourse  similar  to  the  natural  rights 
of  riparian  owmers  on  a  natural  watercourse.-"^  In  other 
cases  the  existence  of  such  easements  similar  to  natural 
ri gilts  has  been  based  on  a  presumption  of  grants  to 
that  effect,  as  stated  in  the  next  following  paragraph. 


or> 


Ante,  §  3:]9,  note  33a.  v.   Koonj   Behari   Pattuk,   4   App. 

34.  Ante,   §   3:'-9.  note   33c.  Cas.    121;    Baily   &   Co.   v.    Clark. 

35.  Woodv.  Waudv3Exch.748;  Son  &  Morland   (1902)    1  Ch.  649. 
Rameshur  Pershad  Narain  Singh  36.     Ante,  §  339,  note  33c. 


1238  Eeai.  Property.  [§  353 

When  a  watercourse  is  constructed  over  the  lands 
of  several  persons,  for  utilization  by  all  of  them,  it  may 
properly  be  presumed,  it  has  been  held,  in  the  absence 
of  evidence  to  tlie  contrary'',  that  the  intention  was  that 
they  should  enjoy  the  same  rights  among  themselves  as 
if  they  were  riparian  owners  on  a  natural  stream,^''' 
that,  in  other  words,  there  were  mutual  grants  by  them 
of  easements  to  that  extent.  And  there  are  English 
cases  in  which  such  a  presumption  has  been  applied  in 
connection  with  a  watercourse  flowing  in  an  ancient 
channel,  of  unkno^\^l  date,  but  evidently  of  artificial 
creation,  and  apparently  intended  for  the  benefit  of  the 
various  owners  of  the  land  through  which  it  passes.^'' 

In  the  case  of  an  artificial  watercourse  or  drain 
over  the  land  of  one  person,  which  had  its  inception  ex- 
clusively in  the  needs  of  another  person,  as  when  one 
persoji  acquires  by  grant  a  privilege  to  have  water  flow 
in  a  stream  either  to  or  away  from  his  land  over  the 
land  of  another,  or  causes  such  flow  over  another's  land 
without  any  privilege  of  so  doing,  the  person  whose 
land  is  thus  burdened  would  have,  in  the  first  place,  no 
right  to  insist  on  a  continuance  of  the  burden;  that  is, 
he  would  have  no  easement  to  have  the  flow  of  water  so 
continued  for  his  benefit,  nor  would  he,  not  Jiaving  the 
right  to  have  it  continued,  have  any  right  as  to  the  water 
itself.""  In  other  words,  he  would  not  have  the  rights, 
as  to  the  water,  of  a  riparian  proprietor  on  a  natural 
stream.  Whether,  after  the  flow  has  continued  for  the 
prescriptive  period,  he  could  claim  an  easement  by  pre- 
scription as  to  the  flow  of  water,  would  seem  largely  to 

37.     Burrows  v.   Lang   (1901)    2  Vt.    109.    11   L.    R.    A.    N.    S.    693, 

Ch.  502;  Whitmores  (Edenbridge),  66   Atl.  1039. 

Ltd.  V.  Stanford  (1909)  1  Ch.  427;  38.     Roberts  v.  Richards.  50  L. 

Townsend  v.  McDonald,  12  N.  Y.  J.  Ch.  297.  Baily  &  Co.  v.  Clark, 

381;   Cottel  v.  Berry,  42  Ore.  593,  Son  &  Morland   (1902)    1  Ch.  649. 

72    Pac.    584;    Harrington   v.    De-  39.     Burrows  v.  Lang   (1901)   2 

Maris,  46  Ore.  Ill,  1  L.  R.  A.  N.  Ch.  502;  Whitmores  (Edenbridge), 

S.   756,   77   Pac.   603,   82   Pac.   14;  Ltd.  v.  Stanford  (1909)  1  Ch.  427. 
Cloyes  V.  Middlebury  Elec.  Co.,  80 


§  353]  Easements.  1239 

depend  on  the  acceptance  of  the  doctrine  of  reciprocal 
easements  by  prescription  elsewhere  referred  to.^^  A 
somewhat  analogous  question  has  arisen,  in  connection 
with  natural  watercourses,  whether  after  the  channel  has 
been  changed  and  has  so  remained  for  a  nmnber  of 
years,  the  stream  can  be  restored  to  its  former  channel 
as  against  persons  wlio  liave  improved  and  utilized  their 
land  upon  the  assumption  that  the  change  would  be 
permanent.^  ^ 

In  England  it  is  stated  that  if  a  watercourse  is 
created  for  a  merely  temporary  purpose,  there  is  no 
room  for  the  presumption  of  a  grant,  in  favor  of  a 
person  whose  land  alaits  thereon,  of  a  right  as  to  the 
use  of  the  water,^-  but  ' '  temporary  purpose ' '  appears  to 
include  every  purpose  for  which  an  individual  would  be 
likely  to  create  or  divert  a  watercourse,^^  and  the  result 
of  the  English  cases  seems  to  be,  at  least  approximately, 
that  if  a  watercourse  is  created  by  one  for  his  own 
purposes,  a  grant  by  him  of  a  right  as  to  the  water  will 
not  be  presumed,  while  if  created  by  several  persons  for 
their  mutual  benefit,  across  their  own  lands,  'mutual 
grants  of  rights  as  to  the  use  of  the  water  will  be 
presumed.^^ 

Grants   of  water  power.     Though   a   riparian 


owner  on  a  natural  water  course  has,  by  the  weight  of 
authority,  no  power  to  confer  upon  another  the  privilege 
of  appropriating  water  from  the  stream,  to  be  consumed 
elsewhere  than  upon  riparian  land,^^  he  may  confer  upon 
one  who  is  not  a  riparian  owner  the  privilege  of  using 
the  water  merely  for  temporary  purposes,  the  water  so 
used  being  returned  to  the  stream  in  such  a  condition, 
and  with  such  a  degree  of  promptitude,  as  not  to  affect 

40.  Post.  §  532.  Ltd.  v.  Stanford  (1909)  1  Ch.  427. 

41.  Ante,   §   339(h).  43.     See  cases  in  next  preceding 

42.  Arkwright  v.  Gell,  5  Mees.       note. 

&  W.  203;  Wood  v.  Waud,  3  Exch.  44.     Ante,  this  section,  note  37. 

748;  Burrows  v.  Lang  (1901)  2  Ch.  45.     Ante,  §  339(b),  note  54. 

502;      Whitmores      (Edenbridge), 


1240  Real,  Peoperty.  [§  353 

the  lower  proprietors.^*'  This  is  frequently  done  for 
the  purpose  of  furnishing  power  to  a  mill  or  other  in- 
dustrial enterprise  away  from  the  stream,  the  riparian 
owner  causing  or  allowing  sufficient  water  to  supply  the 
power  to  pass  to  the  desired  locality  through  a  flume 
or  other  conduit.  Such  an  arrangement  is  usually  re- 
ferred to  as  involving  the  grant  of  a  water  right  or 
privilege,  or  of  water  power.  What  is,  legally  speaking, 
the  specific  subject  of  the  grant  in  such  a  case  is  a  matter 
as  to  which  the  courts  give  us  no  information,  and  that 
being  the  case,  the  writer  ventures  to  express  the  opinion 
that  when  the  riparian  owner  thus  gives  to  a  non  ripa- 
rian owner  the  privilege  of  using  the  water  of  the  stream 
for  the  furnishing  of  power,  he  grants  no  right  in  the 
water  itself,  but  merely  grants  a  right  to  conduct,  or  to 
have  the  water  flow,  over  or  through  his  riparian  land, 
in  order  that  it  may  reach  the  land  where  it  is  sought  to 
be  utilized  for  the  creation  of  power.  So  far  as  concerns 
the  utilization  of  the  water  in  such  a  way,  which  does 
not  involve  any  substantial  diminution  of  the  amount 
of  water  passing  to  the  lower  proprietors,  or  cause  it  to 
pass  to  them  in  a  deteriorated  condition,  such  lower 
proprietors  cannot  object,  whether  the  utilization  is  by 
an  upper  riparian  proprietor  himself,  or  by  another 
person.  Since  then  such  other  person  has,  as  against 
the  lower  proprietors,  the  privilege  of  so  utilizing  the 
water,  it  is  necessary,  in  order  that  he  actually  do  so, 
only  that  he  get  access  to  the  water,  and  this  he  acquires 
from  the  upper  riparian  proprietor  by  means  of  a  grant 
from  the  latter  of  the  easement  of  conducting  the  water, 
or  of  having  it  flow  to  a  named  amount,  over  such  upper 
proprietor's  land.  Frequently  the  water  is  conducted 
across  the  riparian  land  by  the  riparian  proprietor 
himself,  who  consequently  in  effect  furnishes  the  water 
to  the  other  person  at  the  boundary  of  the  latter 's  land, 
but  even  in  such  a  case,  it  is  conceived,  the  latter  has 

46.     Ante,  §  339(c). 


§  353]  Easements.  1241 

merely  the  privilege  of  an  unobstructed  flow  of  the  water 
over  or  through  the  riparian  land,  an  easement  in  the 
land  and  not  a  right  in  the  water.  Indeed  the  riparian 
owner  has  himself  no  proprietary  right  in  the  water, 
hut  merely  a  right  to  have  it  flow  past  his  land  as  it 
has  been  accustomed  to  flow,^ '  and  having  no  proprietary 
right  in  the  water,  he  cannot  create  such  a  right  in  an- 
other. It  may,  and  no  doubt  frequently  does,  occur  that 
the  riparian  owner  merely  contracts  to  furnish  water 
power  to  a  certain  extent,  or  to  furnish  a  certain  amount 
of  water  for  the  creation  of  power,  and  in  such  a  case 
there  appears  to  be  no  transfer  whatsoever  of  a  pro- 
prietary right,  no  ''grant"  in  any  sense  of  the  term,  but 
merely  a  personal  obligation  upon  such  owner  to  see 
that  the  water  is  available  for  use  by  his  neiglibor,  at  the 
proper  height,  and  to  the  agreed  extent,  for  the  creation 
of  power. 

The  employment  of  the  expression  "water  power" 
in  this  connection  is  in  itself  calculated  to  produce  some 
confusion  of  ideas.^^  The  expression  properly  means 
the  energy  to  be  produced,  or  capable  of  production,  by 
the  fall  of  water,  and  such  potential  energy  would 
hardly  appear  to  be  a  proper  subject  of  grant.  A 
riparian  owner  does  not,  strictly  speaking,  o\\ai  water 
powder,  but  he  owns  the  privilege  of  controlling  the  water 
at  that  particular  point,  so  that  he  can  allow  it  to  fall  in 

47.  Ante,  §  339(a),  note  34.  so  developed  to  be  considered   in 

48.  The  expression  appears  to  determining  the  taxable  value  of 
have  occa.sioned  some  perplexity  in  non  riparian  land.  See  Blackstone 
connection  with  questions  of  tax-  Mfg.  Co.  v.  Inhabitants  of  Black- 
ation.  The  more  satisfactory  view  stone,  200  Mass.  82,  18  L.  R.  A. 
in  this  regard  is  that  the  water  (N.  S.)  755,  85  N.  E.  880;  Union 
power  is  not  a  distinct  subject  Water  Co.  v.  Auburn,  90  Me.  60, 
for  assessment,  but  that  the  pos-  37  L.  R.  A.  651,  60  Am.  St.  Rep. 
sibility  of  utilizing  the  water  for  40,  37  Atl.  331;  Saco  Water  Power 
the  development  of  power  is  to  Co.  v.  Buxton,  98  Me.  295,  56  Atl. 
be  considered  in  determining  the  914;  Penobscot  Chemical  Fibre  Co. 
taxable  value  of  the  riparian  land,  v.  Bradley,  99  Me.  263,  59  Atl.  83; 
as  is  the  possibility  of  obtaining  Cocheco  Co.  v.  Strafford,  51  N.  H. 
the  whole  or  a  part  of  the  power  455;    Amoskeag  Mfg.   Co.   v.  Con- 


1242  Real  Property.  [§  35-1: 

such  a  manner,  and  in  connection  with  snch  appliances, 
that  it  will  produce  power  capable  of  industrial  ap- 
])lication,  and,  as  above  indicated,  in  making  it  possible 
for  another  person  to  control  the  water  for  the  same 
]nirposes,  by  means  of  a  grant  of  the  privilege  of 
having  the  water  flow  over  his  land  or  otherwdse,  he 
effects  what  is  ordinarily  referred  to  as  a  grant  of  water 
power. 

In  case,  as  frequently  occurs,  the  riparian  owner 
w^ho  grants  the  use  of  the  water  to  a  non  riparian  owner, 
owns  a  dam  upon  the  stream  which  serves  to  keep  the 
water  at  the  desired  level,  the  grant  of  the  use  of  the 
water  would  involve  the  grant  not  only  of  an  easement 
to  have  the  water  pass  over  the  riparian  land,  but  also, 
presumably,  of  an  easement  to  utilize  the  dam  for  the 
purpose  of  making  the  water  available  for  his   use.^^ 

§  354.  Support  of  land.  As  before  explained,  the 
owner  of  land  has  a  natural  right  to  support  for  his 
land  from  neighboring  land,  as  has  the  owner  of  the 
surface  of  land  from  subjacent  soil  or  minerals.^"  Such 
a  natural  right  may  be  extended  or  diminished  by  the 
creation  of  an  easement  in  favor  of  one  landowner  by 
the  other.  The  owner  of  land  may  accordingly  grant 
to  the  owner  of  adjacent  land  the  privilege  of  with- 
drawing support  from  the  former's  land,^^  and  the  owner 
of  the  surface  of  land  may  grant  to  the  owner  of  sub- 
jacent soil  or  minerals  the  privilege  of  withdrawing 
support  from  the  surface.''"     But  the  intention  to  grant 

cord,  66   N.  H.   562,   32   L.   R.   A.  73  Conn.  294,  47  Atl.  328;   Moline 

621,  34  Atl.  241;  BeHows  Falls  Water  Power  Co.  v.  Cox,  252  111. 
Canal  Co.  v.  Rockingham,  37  Vt.  348,  96  N.  E.  1044)   is  not  readily 

622.  The  propriety  of  referring  to  apparent. 

water  power,  that  is,  the  privilege  49.     See    Trudeau    v.    Field,    69 

of  controlling  the  fall  of  water  by  Vt.  446,  38  Atl.  162. 

reason    of   the    location    of    one's  50.     Ante,  §§  345,  346. 

land,  as  having  a  distinct  situs  for  51.     Ryckman  v.  Gillis,  57  N.  Y. 

the    purpose    of    taxation    (as    in  68. 

Quinnebaug  Reservoir  Co.  v.  Union  52.     Rowbotham  v.  Wilson,  8  H. 


^  355] 


Easements. 


1243 


.(or  reserve)  an  easement  of  this  character  nnist  clearly 
appear,  and  it  cannot  be  inferred  from  general  langnage, 
contained  in  the  conveyance  by  which  the  ownership 
of  the  minerals  is  severed  from  that  of  the  surface, 
although  by  that  language  a  right  to  extract  all  the 
mnierals  is  apparently  recognized.^^ 

§  355.  Support  of  buildings.  The  owner  of  land 
may  acquire  from  the  owner  of  adjoining  land  an  ease- 
ment consisting  of  a  right  to  support  for  buildings  on 
his  land  from  such  adjoining  land,^*  or  from  adjoining 
buildings,^^  neither  of  wliich  exists  as  a  natural  right. 


L.  Cas.  362 ;  Aspden  v.  Seddon,  10 
Ch.  App.  394;  Wilms  v.  Jess,  94  lU. 
464,  34  Am.  Rep.  242;  Scranton 
V.  PhUlips,  94  Pa.  St.  15;  Miles 
V.  Pennsylvania  Coal  Co.,  217  Pa. 
St.  449,  10  Ann.  Cas.  871,  66  Atl. 
764;  Kirwin  v.  Delaware  L.  &  W. 
R.  Co.,  249  Pa.  98,  94  Atl.  468. 
That  such  a  privilege  of  removing 
surface  support  is  properly  re- 
garded as  an  easement,  see  Pro- 
fessor Hohfield's  luminous  article, 
27  Yale  Law  Journ.  66. 

53.  Dixon  v.  White,  8  App.  Cas. 
883;  Sloss  Sheffield  Steel  &  Iron 
Co.  v.  Sampson,  158  Ala.  590, 
48  So.  493;  Wilms  V.  Jess,  94  111. 
464,34  Am.  Dec.  242;  Lloyd  V.  Cat- 
linCoalCo.,  210  111.  460,  71  N.  E. 
335;  Paull  v.  Island  Coal  Co..  44 
Ind!  App.  218,  88  N.  E.  959;  Collins 
V.  Gleason  Coal  Co  ,  140  Iowa,  114, 
18  L.  R.  A.  N.  S.  736,  115  N.  W. 
479;  Walsh  v.  Kansas  Fuel  Co., 
91  Kan.  310,  50  L.  R.  A.  N.  S. 
686,  137  Pac.  941 ;  Piedmont  etc. 
Coal  Co.  V.  Kearney,  114  Md.  49(;, 
79  At.  1013;  Erickson  v.  Michigan 
Land  &  Iron  Co.,  50  Mich.  604,  16 
N.  W.  161;  Burgner  v.  Humph- 
reys, 41   Ohio  St.  340;    Robertson 


V.  Youghiogheny  River  Coal  Co., 
172  Pa.  St.  566,  33  Atl.  706;  Wea- 
ver V.  Berwind-White  Coal  Co.,  216 
Pa.  195,  65  Ala.  545;  Berkey  v. 
Berwind-White  Coal  Co.,  220  Pa. 
651,  16  L.  R.  A.  X.  S.  851,  60 
Atl.  329;  Stongap  Colliery  Co.  v. 
Hamilton,  119  Va.  271,  89  S.  E. 
305;  Catron  v.  Smith  Buller  Min. 
Co..  181  Fed.  941,  104  C.  C.  A. 
But  see  Griffin  v.  Fairmont  Coal 
Co.,  59  W.  Va.  480,  2  L.  R.  A. 
N.  S.  1115,  5;;  S  E.  24;  Kuhn  v. 
Fairmont  Coal  Co.,  179  Fed.  191, 
102   C.   C  A.   457. 

54.  Rigby  v.  Bennett,  21  Ch. 
Div.  559;  TunstaU  v.  Christian, 
80  Va.  1,  56  Am.  Rep.  581;  Lasala 
V.  Holbrook,  4  Paige   (N.  Y.)   173. 

55.  Angus  V.  Dalton,  4  Q.  B. 
Div.  162;  Dalton  v.  Angus,  6  App. 
Cas.  740;  Murchie  v.  Black,  19  C. 
B.  (N.  S.)  190;  Richards  v.  Rose. 
9  Exrh.  218;  Lemaitre  v.  Davis, 
19  Ch.  Div.  281;  City  of  Quincy 
v.  Jones.  76  111.  231.  20  Am.  Rep. 
243;  Pierce  v.  Dyer,  109  Mass. 
374,  12  Am.  Rep.  716;  Partrid.s;p 
V.  Gilbert,  15  N.  Y.  601,  69  Am. 
Dec.  632. 


1244:  Real  Pkoperty.  [§  356 

In  cases  in  whicli  separate  floors  of  a  building  belong" 
to  different  persons,  tliere  is  a  right  of  support  for  the 
upper  floor  or  floors  from  the  lower  part  of  the  building, 
and  this  right  the  o^\^ler  of  the  latter  can  in  no  way 
impair,  there  being  an  implied  grant  to  this  effect  in  the 
conveyance  of  such  upper  floor  or  floors. ^*^ 

§  356.  Party  walls.  A^'j^arty  wall"  is  a  division 
wall  between  two  buildings  belonging  to  different 
persons,  in  which  each  of  such  persons  has  certain 
rights  of  use  or  ownership,  or  both.  The  term,  as  stated 
in  a  modem  English  case,^"^  has  been  used  in  connection 
with  division  walls  in  four  different  senses.  It  may  refer 
to  (1)  a  division  wall  of  which,  with  the  land  beneath. it, 
the  owners  of  the. two  adjoining  buildings  are  tenants  in 
common ;^^  (2)  a  wall  divided  longitudinally  into  two 
strips,  each  of  the  adjoining  owners  owning  the  strip 
on  his  side,  and  having  a  right  to  use  that  strip  only;^^ 
(3)  a  wall  located  entirely  upon  the  land  of  one  of  the 
adjoining  owners,  and  belonging  entirely  to  him,  but 
subject  to  an  easement  in  the  other  to  have  it  maintained 
as  a  division  wall  between  the  two  properties  and  to 
use  it  for  purposes  of  support  ;^^  or  (4)  a  wall  divided 

56.  McConnel  v.  Kibbe,  33  111.  1  Ch.  508;  Wiltshire  v.  Sidford,  1 
175,  85  Am.  Dec.  265;  Rhodes  v.  Man.  &  R.  404;  Montgomery  v. 
McCorm.ack,  4  Iowa,  375;  Graves  Trustees  of  Masonic  Hall.  70  Ga. 
V.  Berdan,  26  N.  Y.  501;  Harris  38.  See  Eherred  v.  Cisco,  4  Sandf. 
V.  Ryding,  5  Mees.  &  W.  60.  (N.  Y.)    480. 

But    the    owner    of    the    upper  59.     Matts  v.  Hawkins,  5  Taunt, 

floor  has,  it  seems,  no  right  to  de-  20;   Murly  v.  McDermott,  8  Adol. 

mand  that  the  owner  of  the  lower  &   E.   138. 

keei)  it  in  repair  for  the  purpose  60.     Tate  v.  Fratt.  112  Cal.  613, 

of     supporting    the    former.     See  44  pac.  1061;  Price  v.  McConnell. 

l)ost.  §  370.  note  55.  27   111.   255;    Molony  v.  Dixon.   65 

57.  Watson  v.  Gray.  14  Ch.  Div.  Iowa.  1.36,  54  Am.  Rep.  1,  21  N. 
192,  2;er  Fry,  J.  W.    488;    Henry  v.   Kock,  80   Ky. 

58.  It  is  used  in  this  sense  in  391.  44  Am.  Rep.  484;  Dorsey  v. 
the  following  cases;  Cubitt  v.  Habersack,  84  Md.  117,  35  Atl. 
Porter.  8  Barn.  &  C.  257;  Mayfair  96;  Rogers  v.  Sinsheimer,  50  N. 
Property   Co.   v.  Johnston    (1894)  y.   646;    Nash   v.   Kemp,   49  How. 


§  356]  Easements.  1245 

longitudinally  in  to  two  strips,  each  of  tlic  adjoining 
owners  owning  the  strip  on  his  side  only,  but  having 
an  easement  in  the  other  strip  for  the  purposes  of  the 
support  of  his  building.*'^ 

In  England,  a  division  wall  is  presumed  to  belong 
to  the  first  of  the  above  clases.^-  In  -this  country,  no 
such  presumption  has  ever  been  recognized,  and  a  party 
wall  almost  invariably  belongs  to  the  fourth  class 
mentioned  above,  except  in  the  few  cases  in  which  it 
belongs  to  the  third  class  as  having  been  built  entirely 
on  the  land  of  one  proprietor.  For  this  reason,  it  seems 
proper  to  consider  the  subject  of  party  walls  as  a  part 
of  the  law  of  easements,  though  a  party  wall  of  the 
first  or  second  class  involves  no  application  of  that  law. 

A  wall  may  be  a  party  wall  for  part  of  its  height, 
and,  as  to  the  balance,  a  wall  belonging  entirely  to  one  of 
the  two  adjoining  ow^ners,  without  any  easement  of 
support  in  favor  of  the  other.*'^ 

If  one  of  two  adjoining  owners,  in  building  a  wall, 
places  it  in  part  upon  the  land  of  the  adjoining  owner, 
whether  Avith  or  without  the  assent  of  the  latter,  the 

Pr,   (N.  Y.)   522;   Western  Bank's  Curtis,  50  N.  Y.  639,  10  Am.  Rep. 

Appeal,    102    Pa.    St.    171;    Bright  545;    Odd  Fellows'  Hall  Ass'n  of 

V.  Allan,  203  Pa.  St.  394,  93  Am.  Portland    v.    Hegele,    24    Ore.    16, 

St.   Rep.   769,    53  Atl.   251;    Duns-  32    Pac.   679;    Sanders   v.   Martin, 

comb  V.  Randolph,   107  Tenn.   89,  2   Lea    (Tenn.)    213,   31  Am.   Rep. 

89    Am.    St.    Rep.    915,    64    S.    W.  598;     Davenhauer    v.    Devine,    51 

21.  Tex.  480,  32  Am.  Rep.  627;    And- 

61.     Graves    v    Smith,    87    Ala.  rae  v.  Haseltine,  58  Wis.  395,  46 

450,  13  Am.   St.   Rep.  60,  5  L.  R.  Am.  Rep.  635,  17  N.  W.  18. 

A.   298,  6  So.  308;    Ingals  v.  Pla-  62.     Cubitt  v.  Porter,  8  Barn.  & 

mondon,    75    Hi.    118;     Block    v.  C.    257;    Watson   v.   Gray,    14   Ch. 

Isham,    28    Ind.    37,   92    Am.    Dec.  Div.  192. 

287;    Hoffman  v.   Kuhn,   57    Miss.  63.     Weston  v.  Arnold,  L  .R.  8 

746,   34   Am.   Rep.   491;    Shiverich  Ch.   1084;    Price  v.  McConnell,  27 

V.  R.  .1.  Gunning  Co.,  58  Neb.  29,  111.    255;    Ringgold    Lodge    v.    De 

78   N.  W.    460;    Partridge  v.   Gil-  Kalb  Lodge,  157  Ky.  203,  162  S.  W. 

bert,   15   N.  Y.   601,   69   Am.    Vec.  1111;    Barry  v.   Kdlavitch,  84   Md. 

632;  Hendricks  v.  Stark,  37  N.  Y.  95,  33  L.  R.  A.  294,  35  Atl.  170. 
106,  93  Am.   Dec.  549;    Brocks   v. 
2  R..P.— 4 


1246 


Real  Peopeety. 


[§  356 


courts  will  not  ordinarily  recognize  any  liability  on  the 
part  of  the  latter,  by  reason  of  his  subsequent  user  of 
the  wall,  to  the  builder.*'^  A  promise  by  him  to  pay 
for  such  use  as  lie  may  make  of  the  wall  may,  however, 
it  has  been  decided,  be  inferred  from  the  fact  of  his 
acquiescence  in  its  construction  by  the  other  in  part  on 
his  land,  with  knowledge  that  the  latter  expects  payment 
for  its  use,*^^  and  there  are  occasional  decisions  and 
suggestions  to  be  found  that,  without  reference  to  the 
circumstances  under  which  the  wall  was  erected,  the  non 
lAiilder  is  bound  to  contribute  to  the  cost  of  its  erection 
upon  making  use  thereof/''"  There  is  frequently  an  ex- 


64.  Antimarchi  v.  Russell,  63 
Ala.  356,  35  Am.  Rep.  40;  Prelss 
V.  Parker,  67  Ala.  500;  Orman  v. 
r>ay,  5  Fla.  385;  Huck  v.  Flentye, 
80  111.  258;  Long  v.  Smyre,  87 
Kan.  182,  123  Pac.  765;  Wiikins 
V.  Jewett,  139  Mass.  29,  29  N.  E. 
214;  Allen  v.  Evans,  161  Mass. 
485,  37  N.  E.  571;  Sherred  v. 
Cisco,  4  Sandf.  (N.  Y.)  480;  Grif- 
fin V.  Sansom,  31  Tex.  Civ.  App. 
560,  72  S.  W.  864;  List  v.  Horn- 
brook,  2  W.  Va.  340.  See  21  Harv. 
Law  Rev.  at  p.  222. 

65.  Huck  V.  Flentye.  80  111.  2.3S; 
Wickersham  v.  Orr,  9  Iowa,  253, 
74  Am.  Dec.  348;  Day  v.  Caton, 
119  Mass.  513,  20  Am.  Rep.  347; 
Griffin  v.  Sansum,  31  Tex.  Civ. 
App.  560,  72  S.  W.  864.  See 
Bank  of  Escondido  v.  Thomas, 
—  Cal.  — ,  41  Pac.  462;  Zeinin- 
ger  V.  Schnitzler,  48  Kan.  63.  28 
Pac.  1007. 

It  has  been  decided  that  the 
fact  that  the  wall,  though  built 
on  A's  land,  projected  over  B's 
land,  precluded  A  from  obtain- 
ing an  injunction  against  the  use 
of  the  wall  by  B.     Guttenberger 


V.  Woods.  51  Cal.  523.  On  the 
other  hand  it  was  held  that  the 
fact  that  the  foundation  of  ths 
wall  extended  under  ground  into 
B's  land,  all  the  wall  above  the 
ground  being  on  A's  land,  gave 
B  no  right  to  use  the  wall  with- 
out making  compensation.  Tru- 
lock  V.  Parse.  83  Ark.  149,  11  L. 
R.   A.    X.    S.    924,   103    S.  W.   166. 

66.  Zugenbuhler  v.  Gilliam,  3 
Iowa,  371 ;  Spaulding  v.  Grundy, 
31  Ky.  Law  Rep.  951,  104  S.  W. 
293;  Howze  v.  Whitehead.  93  Miss. 
578,  46  So.  401;  Reid  v.  King, 
158  N.  C.  85,  73  S.  E.  168; 
Sanders  v.  Martin,  2  Lea  (Tenn.) 
213. 

The  mere  fact  that  one.  In 
contructing  a  building  extending 
to  the  edge  of  hits  land,,  con- 
structs no  wall  along  such  edge, 
utilizing  the  wall  of  his  neigh- 
bor for  protection  on  that  side. 
without  however  in  any  way  cut- 
ting or  breaking  into  it,  does  not 
give  the  neighbor  a  right  of  action. 
Nolan  V.  Mendere.  77  Tex.  565,  19 
Am.  St.  Rep.  801,  14  S.  W.  167. 
See  Bisquay  v.  Jennelot,   10   Ala. 


§  357]  Easements.  1247 

press  agTeement  to  this  effect,''"  and  occasionally  a 
statute  imposes  a  pecuniary  liability  upon  one  making 
use  of  a  wall  placed  partly  on  his  land.^"'' 

§  357.  Partition  fences.  There  is  generally,  at 
common  law,  no  obligation  upon  a  landowTier  to  maintain 
a  partition  fence  between  his  land  and  the  land  ad- 
joining.''^ But  there  may  be  an  easement,  created  by 
grant  or  prescription,  in  favor  of  one  piece  of  land,  by 
which  the  owner  of  land  adjacent  thereto  is  compellable 
to  maintain  a  partition  fence  between  them."^  Such  an 
easement  is  sometimes  referred  to  as  a  "spurious" 
easement,  since  a  true  easement,  it  is  considered,  cannot 
involve  a  duty  of  active  performance  on  the  part  of 
the  owner  of  the  land  subject  to  the  easement,  the 
servient  tenement.  An  easement  involving  a  right  to 
the  maintenance  of  a  partition  fence  is  to  be  distinguish- 
ed from  a  right  to  have  it  maintained  by  reason  of  a 
contract  to  that  effect.'^ ^ 

In  many  states  there  are  statutes  providing  for  the 
construction  of  a  partition  fence  between  adjoining- 
pieces  of  land  at  the  joint  expense  of  the  owners  or 
occupants  thereof.'^  By  these  statutes,  each  adjoining 
owner  or  occupant  is  required  not  only  to  join  in  the 

245,    44    Am.    Dec.    483.      But    he  Castner  v.  Riegel,   54  N.  J.  Law, 

cannot  cut  or  break  into  the  waU,  498,   24  Atl.   4S4;    Adams   v.    Van 

it  not  being  a  party   wall.     Sim-  Alstyne,  25  N.   Y.   232. 

onds  V.  Shields,  72  Conn.  141    44  70.     D'Arcy  v.  Miller,  86  111.  102, 

Atl.  29.  29   Am.  Rep.    11;    Bruner  v.    Pal- 

67.  Post,  §  361,  notes  37-52,  §  mer,  108  Ind.  397;  Lawton  v. 
393.  Fitchburg  R.  Co.,  8  Cush.  (Mass.) 

67a.     Post,  §  365,  notes  11-21.  230,  45  Am.  Dec.  753;    O'Riley  v. 

68.  Star  v.  Rookesby,  1  Salk.  Diss,  41  Mo.  App.  184;  Harrlman 
323;  Moore  v.  Levert,  24  Ala.  310;  v.  Park,  55  N.  H.  471;  Scott  v. 
Rust  V.  Low,  6  Mass.  90.  And  Grover,  56  Vt.  499,  48  Am.  Rep. 
see  ante,  §  298.  814. 

69.  Star  v.  Rookesby,  1  Salk.  71.  1  Stimson's  Am.  St.  law, 
335;  Lawrence  v.  Jenkins,  L.  R.  §  2182;  12  Am.  &  Eng.  Enc.  Law, 
8    Q.    B.    274;    Bronson    v.   Coffin,  1050   et  scq..  Ante,   §   298. 

108    Mass.    175,    118    Mass.    15C; 


1248  Eeal  Property.  [§  357 

construction  of  the  fence,  but  also  in  its  maintenance 
and  repair,"^  and  neither  can,  without  the  consent  of 
the  other,  remove  any  part  of  the  fence,  except,  in 
some  states,  at  certain  periods  of  the  year,  or  after 
a  prescribed  notice  to  the  other  proprietor.'" 

When  one  owner  of  land  desires  to  compel  con- 
tribution by  an  adjacent  owner  of  part  of  the  cost  of  a 
partition  fence  under  the  statute,  and  the  latter  re- 
fuses to  make  contribution,  the  former  is  usually  ex- 
pressly authorized  to  apply  to  local  officers,  called 
"fence  viewers,"  for  a  determination  of  the  proportions 
to  be  built  and  maintained  b}?-  each,  or,  in  case  the  fence 
is  already  erected,  for  an  allowance  of  the  amount  to  be 
contributed  by  the  party  in  default.^^  These  statutes 
usually  authorize  one  thus  to  compel  his  neighbor  to 
join  in  the  erection  and  maintenance  of  the  fence  only 
in  case  the  latter 's  land  is  improved,'^ ^  or  occupied,^*^ 
or  inclosed,'^^  and  sometimes  only  when  the  land  is 
used  or  occujDied  "otherwise  than  in  common,"  this 
meaning  land,  it  is  said,  which  is  segregated  from  other 
land  by  inclosure,  or  by  use  of  an  exclusive  nature.'^^ 

An  owner  of  land  who  is  bound,  by  grant  or  pre- 
scription,   or    by    reason    of    proceedings    under    the 

72.  1  Stimson's  Am.  St.  Law,  §  Y.)  320;  Shriver  v.  Stephen.3,  20 
2185;  Guyer  v.  Stratton,  29  Conn.  Pa.  St.  1.38;  Farr  v.  Spain,  67 
421;  Rhodes  v.  Mummery,  48  Ind.       Wis.  631,  31  N.  W.    21. 

216;    Barrett  v.    Dolan,    71    Iowa.  75.     Wiggin  v.  Baptist   Soc,  43 

94,    32    N.    W.    189;     Stephens    v.  N.  H.  260. 

Shriver,  25  Pa.  St.  78;  Carpenter  76.     Maudlin  v.   Hauscombe,  12 

V.  Cook,  67  Vt.  102,  30  Atl.  998.  Colo.  204,  20  Pac.  619;  Rust  v.  Low 

73.  1  Stimson's  Am.  St.  Law,  §  6  Mass.  90. 

2184.  77.     Kent   v.    Lix,    47    Mo.    App. 

74.  1  Stimson's  Am.  St.  Law,  §  567;  Boyd  v.  Lammert,  18  111.  App. 
2182;  Gonzales  v.  Wasson,  51  Cal.  632;  Boenig  v.  Hornberg,  24  Minn. 
295;   Thompson  v.  Bulson,  78  111.  307. 

277;    Farmer  v.  Young,   86  Iowa.  78.     Hewit   v.   Jewell,    59    Iowa, 

382,    53    N.   W.     279;     Briggs    v.  87,  12  N.  W.  738  ;  Jones  v.  Perry, 

Haynes,  68  Me.  535;  Burr  v.  Kam-  50  N.  H.  134.  See  Perkins  v.  Per- 

er,    12    Neb.    483,    11    N.   W.   741;  kins,  44  Barb.    (N.  Y.)    134. 
Bronk   v.    Becker,    17   Wend.    (N. 


§  358]  Easements.  1249 

statute,  to  maintain  a  partition  fence,  or  a  part  thereof, 
is  liable  to  the  adjoining  proprietor  for  any  damage 
that  may  occur  owing  to  his  failure  properly  to  main- 
tain it,  there  being  usually  an  express  provision  to 
this  etfect  in  statutes  providing  for  partition  fences."^ 
He  has  no  right  to  recover  against  the  adjoining  pro- 
prietor for  a  trespass  by  the  latter 's  cattle  which  re- 
sults from  his  own  failure  to  comply  with  his  ol^ligation 
to  fence;'*''  but  his  obligation  is  to  his  adjoining  owner 
only,  and  to  those  lawfully  using  the  latter 's  land,  and 
he  may  recover  against  others  whose  cattle  trespass 
on  the  adjacent  land,  and  pass  therefrom  onto  his  land, 
although  they  do  so  owing  to  his  own  failure  to  fence. ^^ 

§  358.  Rights  of  way.  A  right  of  way  is  primarily 
a  privilege  to  pass  over  another's  land.  Such  a  right 
never  exists  as  a  natural  right,  but  must  always  be 
created  by  a  grant  or  its  equivalent.  A  right  of  way  may 
be  either  public  or  private, — that  is,  it  may  be  a  right 
of  passage  of  which  every  individual  may  avail  himself, 
or  it  may  exist  for  the  benefit  of  one  individual  or  class 
of  individuals.  Public  rights  of  way  are  not,  properly 
speaking,  easements,  though  they  are  frequently  re- 
ferred to  as  such,  and  they  will  be  more  particularly 
discussed  in  another  connection.**-  Private  rights  of 
way,  which  constitute  one  of  the  most  important  classes 
of  easements,  will  be  hereafter  discussed  in  connection 

79.  Powell  V.  Salisbury,  2  239;  Rangier  v.  McCreight,  27  Pa. 
Younge  &  J.  .'591;  Gate  v.  Gate,  50  St.  95  Roach  v.  Lawrence,  56  Wis. 
N.  H.  144,  9  Am.  Rep.  179;  Saxton      478,  14  N.  W.  595. 

V.  Bacon,  31  Vt.  540;   1  Stimson's  81.     Lord  v.  Wormwood,  29  Me. 

Am.  St.  Law,  §  2189   (B).  282,  50  Am.  Dec.  586;  Rust  v.  Low, 

80.  D'Arcy  v.  Miller,  86  111.  102,  6  Mass.  90;  Lyons  v.  Merrick,  105 
29  Am.  Rep.  11;  Baynes  v.  Chas-  Mass.  71;  Lawrence  v.  Gombs,  37 
tain,  68  Ind.  376";  Barrett  v.  N.  H.  :'.31,  72  Am.  Dec.  3;i2;  Chapin 
Dolan,  71  Iowa,  94,  32  N.  W.  189.  v.  Sullivan  R.  Go.,  39  N.  H.  53,  75 
Tonawanda   R.    Co.    v.   Monger,    5  Am.  Dec.  207. 

Denio    (N.   Y.)    255,   49   Am.   Dec.  82.  Post,  §  417. 


1250  Real,  Property.  [§  359 

with  the  acquisition,  user,  and  extinguishment  of  ease- 
ments.""'^ 

A  railroad  right  of  way,  so  called,  is  frequently  more 
than  a  mere  right  of  way,  it  being  a  strip  of  land 
aetnally  owned  by  the  railroad  company,  on  which  the 
tracks  are  located.  In  so  far  as  the  railroad  company 
has  merely  an  easement  of  a  right  of  way,  that  is,  the 
privilege  of  having  its  trains  pass  over  another's  land, 
it  is  necessaril}"  an  easement  in  gross  and  not  an  ease- 
ment appurtenant. ^^^ 

Frequently  a  right  of  way  exists,  not  directly  over 
the  soil  of  another's  land,  but  over  a  hallway,  passage 
way  or  stairway  in  a  building  on  another's  land.^^" 
Such  a  right  of  way  frequently  exists  by  reason  of  the 
leasing  of  individual  rooms  or  suites  in  a  building,  the 
owner  of  the  building  retaining  control  of  the  hallways 
and  stairways,  subject,  however,  to  a  right  of  way  over 
such  hallways  and  stairways,  in  favor  of  each  lessee  of 
a  room  or  suite. ^^*^ 

§  359.  Pews  and  burial  rights.  The  character  of 
the  rights  enjoyed  by  the  holder  of  a  church  pew  has 
been  the  subject  of  numerous  decisions  in  this  country', 
which  are,  how^ever,  not  entirely  harmonious  in  charac- 
ter, and  are  frequently  unsatisfactory  iu  their  discus- 
sion of  the  principles  involved.^^^  In  England,  there 
may  be  an  easement,  consisting  of  the  privilege  of  oc- 
cupying a  particular  pew  in  the  parish  church,  an- 
nexed to  a  particular  house  or  messuage,  this  apparent- 
ly not  differing  in  nature  from  any  other  easement,  the 
house  or  messuage  constituting  the  dominant  tenement, 

83.     Post,   §§   3S1-380.  Mich.    578,    147    N.    W.    481. 

83a.     See  2  Lewis,  Em.  Domain,  83c.     Ante,  §  51   (d),  note  97. 

§§   451,   468;    Elliott,   Railroads,   §  83d.     See  Article  by   Carl   Zoll- 

938.  man,  Esq.,  "Pew  Rights  in  Amer- 

83b.     See  e.  g.  Bale  v.  Todd,  123  ican  Law,"  25    Yale    Law    Journ. 

Ga.  99,  50  S.  E.  990;   Teachout  v.  467,    incorporated    in    "American 

Capital  Lodge,  128  Iowa,  380,  104  Civil  Church  Government,  ch.  15, 

N.   W.   440;    Gates  v.   Sebald,   180  by  that  author. 


§  360] 


Easements. 


1251 


and  the  cliiircli  the  servient  tenement. ^^  In  this  country 
it  is  generally  recognized  that  a  "pew  holder"  is  not, 
as  such,  a  part  owner  of  the  church  edifice,  or  of  the 
land  on  which  it  stands,  these  belonging  usually  to  the 
ecclesiastical  authorities,  the  church  corporation,  or 
trustees.**^  He  is  sometimes  said  to  have  an  easement 
or  "incorporeal,  hereditament,"^^  but  if  he  has  an 
easement,  it  is  an  easement  in  gross,  since  in  this 
country  a  pew  is  never  appurtenant  to  a  particular 
house  or  messuage.  Pews  have  also  been  said  to  be 
"real  estate, "^^  but  this  can  be  so  only  when  one's  in- 
terest is,  as  regards  its  possible  duration,  equivalent 
to  an  estate  of  freehold.    If  one's  interest  in  a  pew  is 


84.  Hinde  v.  Chorlton,  L.  R.  2 
C.  P.  104;  Brumfitt  v.  Roberts,  L. 
R.  5  C.  P.  224;  PhiUips  v.  Halliday 

[1891]    App.   Cas.   228. 

85.  First  Baptist  Soc.  in  Leeds 
V.    Grant,    95    Me.    245;    Re    New 

South  Meeting  House  in  Boston, 
1.3  Allen  (Mass.)  497;  Sohier  v. 
Trinity  Church,  109  Mass.  1; 
Jones  V.  Towne,  58  N.  H.  462,  42 
Am.  Rep.  602;  Presbyterian 
Church  in  Newark  v.  Andruss  21 
N.  J.  Law,  325;  Freligh  v.  Piatt, 
5  Cow.  (N.  Y.)  494;  Trustees  of 
Ithaca  First  Baptist  Church  v. 
Bigelow,  16  Wend.  (N.  Y.)  28; 
Wheaton  v.  Gates,  18  N.  Y.  404; 
First  Baptist  Church  in  Hartford 
V.  Witherell,  3  Paige  (N.  Y.)  226, 
24  Am.  Dec.  223;  Kincaid's  Ap- 
peal, 66  Pa.  St.  411,  5  Am.  Rep. 
377;  Howe  v.  Stevens,  47  Vt.  262. 

86.  First  Baptist  Soc.  in  Leeds 
V.  Grant,  59  Me.  245;  Presbyterian 
Church  In  Newark  v.  Andruss,  21 
N.  J.  Law,  325;  Gamble's  Succes- 
sion, 23  La.  Ann.  9.  See  Wash- 
burn,   Easements,    682. 

It  has  been  occasionally  stated. 


rather  ambiguously,  that  the 
"owners  of  pews  have  an  exclusive 
right  to  their  possession  and  oc- 
cupation for  the  purposes  of  public 
worship,  not  as  an  easement,  but 
by  virtue  of  their  individual 
right  of  property  therein,  de- 
rived, perhaps,  in  theory  at  least, 
from  the  corporation  represented 
by  the  trustees  who  are  seised 
and  possessed  of  the  temporalities 
of  the  church."  Shaw  v.  Bever- 
idge,  3  Hill  (N.  Y.)  26,  38  Am. 
Dec.  616;  O'Hear  v.  De  Goes- 
briand,  33  Vt.  606,  80  Am.  Dec. 
652. 

87.  Price  v.  Lyon,  14  Conn.  280; 
Attorney  General  v.  Proprietors 
of  Federal  St.  Meeting  House,  3 
Gray  (Mass.)  1;  Kimball  v.  Sec- 
ond Congregational  Parish  in 
Rowley,  24  Pick.  (Mass.)  347; 
Trustees  of  Ithaca  First  Baptist 
Church  V.  Bigelow.  16  Wend.  (N. 
Y.)  28;  Viele  v.  Osgood,  8  Barb. 
(N.  Y.)130;  Howe  v.  Stevens,  47 
Vt.  262;  Barnard  v.  Whipple,  2a 
Vt.  401,  70  Am.  Dec.  422, 


1252  Real,  Pboperty.  [§  359 

limited  to  a  term  of  years,  or  is  "from  year  to  year," 
it  would  seem  to  be  at  most  personal  property-  merely.*** 
Frequently,  if  not  ordinarily,  at  tlie  present  day,  es- 
pecially in  cburcli  edifices  of  recent  construction,  a  pew 
holder,  so  called,  would  appear  to  be  in  the  position 
merely  of  a  licensee,  he  paying  so  much  periodically  for 
the  privilege  of  occupying  the  pew. 

As  to  the  rights  of  the  person  entitled  to  use  a 
pew,  upon  the  destruction  of  the  church  edifice  or  the 
sale  thereof,  the  cases  are  not  in  entire  accord.  The 
view  more  generally  adopted  is  that  the  church  cor- 
poration or  trustees  are  liable  to  him  for  the  value  of 
his  right  if  the  building  is  destroyed  or  sold  without 
an  absolute  necessity  for  such  action,  while  there  is  no 
such  liability  in  case  such  necessity  exists. ^'^  There  are 
occasional  suggestions  that  the  pew  owner  would  have 
a  right  to  be  allotted  a  pew  in  a  new  edifice  substituted 
for  the  old.'''^ 

Burial    rights.      The    privilege    of    interring 

bodies  in  a  burial  ground  belonging  to  a  corpora- 
tion   or    association,^'-''    has    been    referred    to    as    an 

88.  See  McNabb  v.  Pond,  4  Gates,  18  N.  Y.  395;  Cooper  v. 
Bradf.  (N.  Y.)  7;  Johnson  v.  Cor-  Trustees  of  First  Presbyterian 
bett,  11  Paige  (N.  Y.)  265,  276;  Church,  32  Barb.  (N.  Y.)  222; 
Inhabitants  of  First  Parish  v.  Mayor  v.  Temple  Beth  El,  52  N. 
Spear,  15  Pick.  (Mass.)  144;  Y.  St.  Rep.  638,  23  N.  Y.  Supp. 
Trustees  of  the  Third  Presbyter-  1013;  Kincaid's  Appeal,  66  Pa.  St. 
ian  Congregation  v.  Andruss,  21  411,  422;  Kellogg  v.  Dickinson,  18 
N.  J.  Law,  325.     In  Pennsylvania,  Vt.  266. 

the  right  to  a  pew  is  considered  90.     Daniel    v.    Wood,    1    Pick, 

to  be  personal  property.     Church  (Mass.)     102;     Mayor    v.    Temple 

V.    Wells'    Ex'rs,    24    Pa.    St.    249.  Beth  El,  52  N.  Y.  St.  Rep.  638,  23 

And  so  by  statute   in  Massachu-  N.  Y.  Supp.   1013. 

setts.     Rev.   Laws    1902,   c.   36,    §  90a.     As    to    the    nature    of    a 

38;     and    New    Hampshire    Pub.  right    of    interment    in    land    be- 

Stat.  1901  eh.  220,  §  14.  longing     to     an     individual,     see 

89.  Gorton  v.  Hadsell,  9  Cush.  Woolridge  v.  Smith,  243  Mo.  190, 
(Mass.)  508;  Sohier  v.  Trinity  40  L.  R.  A.  (N.  S.)  752,  147  S.  W. 
Church,  109  Mass.  1;   Wlieaton  v  1019;    Hines    v.    State,    126    Tenn. 


§  359] 


Easements. 


1253 


easement,^^  as  a  usufructuary  right,"-  and  as  a  license.''^ 
The  question  of  the  nature  of  the  interest  of  a  lot  holder, 
as  he  is  frequently  termed,  is  dt-pendent  primarily  upon 
the  intention  manifested  by  the  instrument  by  which 
it  is  created  or  evidenced,  and  the  nature  of  such  in- 
strument. It  may  occur  that  a  lot  is  conveyed  outriglit 
to  one  for  burial  purposes,  he  acquiring  an  estate  there- 
in to  endure  so  long  as  it  is  used,  or  capable  of  use,  for 
burial  purposes.^^     This,  however,  is  unusual. 

A  privilege  of  interring  bodies  in  a  cemetery  lot 
has  been  regarded  as  passing  by  descent.'^-'*  Whether  it 
could  ordinarily  be  devised  or  transferred  inter  vivos 
to  persons  outside  the  family  would  appear  to  depend 
on  the  provisions  of  the  instrument  under  which  it  is 
held  and  the  regulations  of  the  cemetery  corporation 
or  association.^*^ 


1,  42  L.  R.  A.  (N.  S.)  1138,  149 
S.  W.  1058.  See  also  as  to  private 
burying  grounds  within  tlie  con- 
fines of  another's  land.  Brown  v. 
Anderson,  88  Ky.  577,  11  S.  W. 
C07;  Mitchell  v.  Thorne,  134  N. 
Y.  536,  30  Am.  St.  Rep.  699,  32 
N.  E.  10. 

91.  Hook  V.  Joyce,  94  Ky.  450, 
21  L.  R.  A.  96,  22  S.  W.  651; 
Jacobs  V.  Congregation  Children 
of  Israel,  107  Ga.  518,  73  Am.  St. 
Rep.  141,  33  S.  E.  853;  Richards 
V.  Northwest  Protestant  Dutch 
Church,  32  Barb.  (N.  Y.)  42,  20 
How.  Pr.  317. 

92.  Buffalo  City  Cemetery  v. 
City  of  Buffalo,  46  N.  Y.  503; 
Windt  V.  German  Reformed 
Church,  4  Sandf.  Ch.  (N.  Y.)  471; 
Price  V.  Methodist  Church,  4  Ohio 
415. 

93.  Dwenger  v.  Geary,  113  Ind. 
106,  14  N.  E.  903;  Partridge  v. 
First     Independent     Church,     39 


Md.  631;  Rayner  v.  Nugent,  60 
Md.  515;  Gowen  v.  Bessey,  94 
Me.  114,  46  Atl.  792;  Page  v. 
Symonds,  63  N.  H.  17,  56  Am.  Rep. 
481;  McGuire  v.  Trustees  of  St. 
Patrick's  Cathedral,  54  Hun  (N. 
Y.)  207;  Kincaid's  Appeal,  66  Pa. 
St.  420,  5  Am.  Rep.  377. 

94.  Lakin  v.  Ames,  10  Cush. 
(Mass.)  198;  Silverwood  v.  Lat- 
robe,  68  Md.  620,  13  Atl.  161; 
New  York  Bay  Cemetery  Co.  v. 
Buckmaster,  49  N.  J.  Law  449,  9 
Atl.  591;  Matter  of  Brick  Presby- 
terian Church,  3  Edw.  Ch.  (N. 
Y.)   155. 

95.  Jacobus  v.  Congregation 
Children  of  Israel,  107  Ga.  518. 
73  Am.  St.  Rep.  141,  33  S.  E.  853; 
Matter  of  Brick  Presb.  Church,  3 
Edw.  (N.  Y.)  155;  Gardner  v. 
Swan  Point  Cemetery,  20  R.  I. 
646,  78  Am.  St.  Rep.  807,  40  Atl. 
871. 

96.  See    Pearson    v.    Hartman, 


1254 


Real,  Peopekty. 


[§  360 


Tlie  corporation  or  society  controlling  the  cemetery 
may  make  regulations  as  to  the  mode  and  limits  of  the 
use  of  lots  therein  for  burial,'^"  but  such  regulations 
must  not  be  unreasonable  or  arbitrary.^*  All  rights 
in  the  persons  entitled  to  use  the  burial  ground  are 
terminated  by  the  necessary  abandonment  of  the  use  of 
the  land  for  burial  purposes.^^ 

In  so  far  as  the  person  to  whom  the  privilege  of 
burial  is  granted,  has  no  more  than  an  easement  or 
usufructuaiy  right,  he  does  not  have  the  possession  of 
the  burial  lot.^  Somewhat  strangely,  however,  it  has 
been  decided  or  assumed,  in  several  cases,  that  he  may 
maintain  trespass  qimre  clansum  fregit  against  one 
interfering  with  his  right.^ 

§  360.  Miscellaneous  easements.  In  addition  to 
easements  of  the  classes  above  referred  to,  numerous 


100  Pa.  84;  Dickens  v.  Cave  HiU 
Cemetery  Co.,  93  Ky.  385,  20  S. 
W.  282.  That  interments  have 
been  actually  made  has  been  re- 
garded as  precluding  a  sale  of  the 
lot.  Thompson  v.  Hickey,  8  Abb. 
N.  Cas.  159,  59  How.  Pr.  (N.  Y.) 
434;  Schroeder  v.  Wanzor,  36 
Hun.    (N.  Y.)    423. 

97.  Dwenger  v.  Geary,  113  Ind. 
106,  14  N.  E.  903;  Farelly  v. 
Metairie  Cemetery  Ass'n,  44  La. 
Ann.  28,  10  So.  386. 

98.  Rosehill  Cemetery  Co.  v. 
Hopkinson,  114  111.  209,  29  N.  E. 
685;  Mount  Moriah  Cemetery 
Ass'n  V.  Com.,  81  Pa.  St.  235,  22 
Am.  Rep.  743;  Silverwood  v.  Lat- 
robe,  68  Md.  620,  13  Atl.  161. 

99.  Partridge  v.  First  Inde- 
pendent Church,  39  Md.  631;  Page 
V.  Symonds,  63  N.  H.  17,  56  Am. 
Rep.  481;  Richards  v.  North  West 
Dutch   Church,   32   Barb.    (N.   Y.) 


42;  Went  v.  Methodist  Protestant 
Church,  80  Hun.  266,  150  N.  Y. 
577,  44  N.  E.  1129;  Price  v.  Metho- 
dist Episcopal  Church,  4  Ohio  515; 
Kincaid's  Appeal,  66  Pa.  St.  411, 
5  Am.  Rep.  377;  Craig  v.  First 
Presbyterian  Church,  88  Pa.  St. 
42,  32  Am.  Rep.  417. 

1.  That  he  cannot  maintain 
ejectment,  see  Hancock  v.  Mc- 
Avoy,  151  Pa.  460,  31  Am.  St.  Rep. 
774,  18  L.  R.  A.  781,  25  Atl.  47; 
Stewart  v.  Garrett,  119  Ga.  386, 
64  L.  R.  A.  99,  100  Am.  St.  Rep. 
179,  46   S.   E.   427. 

2.  Bessemer  Land,  etc.,  Co.  v. 
Jenkins,  111  Ala.  135,  56  Am.  St. 
Rep.  26,  18  So.  565;  Pulsifer  v. 
Douglass,  94  Me.  556,  53  L.  R.  A. 
238,  48  Atl.  118;  Smith  v.  Thomp- 
son, 55  Md.  5,  39  Am.  Rep.  409; 
Meagher  v.  Driscoll,  99  Mass.  281, 
96  Am.  Dec.  759;  Thirkfield  v. 
Mountain    View   Cemetery    Ass'n, 


§  360] 


Easements. 


1255 


other  easements  liave  been  judicially  recognized.  Among 
sucli  may  be  mentioned  the  privilege  of  maintaining 
upon  another's  land  a  stairway,^  a  reser^'oir/  a  sign- 
board,^ of  utilizing  another's  dock,"  of  placing  a  sign  on 
a  building,"  of  placing  clothes  lines^'*'  on  or  over  an- 
other's land,  of  having  one's  building  overhang  another's 
land,'^  of  s^\'ingin2'  shutters  thereover,^^  and  even  of 
extending  one's  building  or  porch  upon  another's  land.^- 
Also  a  privilege  of  placing  logs  and  lumber,^^  or  mer- 


12  Utah,  76,  41  Pac.  564;  HoU- 
man  v.  Platteville,  101  Wis.  94,  70 
Am.  St.  Rep.  899,  76  N.  W.  1119. 

3.  Moon  V.  Mills,  119  Mich.  298, 
75  Am.  St.  Rep.  390,  77  N.  W. 
926. 

4.  Riefler  &  Sons  v.  Wayne 
Storage  Water  Power  Co.,  232  Pa. 
282,  81  Atl.  300. 

5.  Rex  V.  St.  Pancras  Assess- 
ment Committee,  2  Q.  B.  D.  581, 
586;  Borough  Bill  Posting  Co.  v. 
Levy,  144  N.  Y.  App.  Div.  784,  129 
N.  Y.  Supp.  740. 

6.  Sargent  v.  Ballard,  9  Pick. 
(Mass.)  251;  Nichols  v.  Boston, 
98  Mass.  42,  93  Am.  Dec.  132.  Or 
an  easement  of  utilizing  a  canal 
basin.  International  Pottery  Co. 
V.  Richardson,  63  N.  J.  L.  248,  43 
Atl.   692. 

7.  Moody  V.  Steggles,  12  Ch. 
D.  261;  Levy  v.  Louisville  Gun- 
ning System,  121  Ky.  510,  1  L.  R. 
A.    (N.   S.)    359,   89   S.   W.   528. 

8-9.  Drewell  v.  Towler,  3 
Barn.  &  Ad.  735;  Steiner  v.  Peter- 
man,  71  N.  J.  Eq.  101,  63  Atl. 
1102. 

10.  Ingals  V.  Plamondon,  75 
111.  118;  Taylor  v.  Wright,  76  N. 
J.  Eq.  121,  79  Atl.  433;  First  Bap- 
tist Society  v.  Wetherell,  34  R.   1. 


155,  82  Atl.   1061. 

11.  Richardson  v.  Pond,  15 
Gray  (Mass.)   387. 

12.  Ensign  v.  Colt,  75  Conn. 
Ill,  52  Atl.  829,  946;  Wilson  v. 
Riggs,  27  App.  D.  C.  550;  Jeffrey 
v.  Winter,  190  Mass.  90,  76  N. 
E.  282;  Smith  v.  Lockwood,  100 
Minn.  221,  110  N.  W.  980;  Taylor 
V.  Wright,  76  N.  J.  Eq.  121,  99 
Atl.  433;  Ruffin  v.  Seaboard  Air 
Line  Ry.,  151  N.  C.  330,  66  S.  E. 
317. 

So  an  easement  of  planning  and 
maintaining  a  monument  on  an 
individuals  land  was  recognized  in 
Wilson  V.  Board  of  Chosen  Free- 
holders of  Gloucester  County,  83 
N.  J.  Eq.  545,  90  Atl.  1021. 

Compare  Littlefield  v.  Maxwell, 
31  Me.  134;  Cortelyou  v.  Van 
Brundt,  2  Johns.  (N.  Y.)  357,  to 
the  effect  that  any  right  invol- 
ing  exclusive  occupancy  is  neces- 
sarily more  than  an  easement. 
And  see  references  to  English 
authorities  to  this  effect,  P"^t,  § 
361,  note  34. 

13.  Pollard  v.  Barnes,  2  Cush. 
(Mass.)  191;  Gurney  v.  Ford,  2 
Allen  (Mass.)  576;  Lacy  v.  Green. 
84  Pa.  514. 


1256  Real  Property.  [§  360 

chaiidise,^-'  on  another's  land,  of  tieing  horses/^  mixing 
manure/^  and  storing  rolling  chairs  for  hire^"^  thereon, 
of  placing  appliances  to  control  the  flow  of  water,^^  or 
to   catch  fish.^*^ 

In  a  few  states  the  statutes  name  certain  ease- 
ments which  may  be  imposed  upon  land  in  favor  of 
other  land,  and  also  certain  easements  which  may  be 
so  imposed  without  making  them  appurtenant  to  other 
land.-°'-^  These  provisions  do  not  appear  to  have  had 
[.ny  substantial  effect  as  regards  the  law  of  easements 
in  those  states. 

There  are  to  be  found  occasional  judicial  expres- 
sions to  the  effect  that  new  species  of  easements  will 
not  be  recognized,^^  that,  in  other  words,  "incidents  of 
a  novel  kind  cannot  be  attached  to  property  at  the 
fancy  or  caprice  of  any  owner.  "^^  And  this  view  re- 
ceived practical  application  in  one  case  in  which  the 
court  refused  to  recognize  an  easement  consisting  of 
an  exclusive  right  to  float  boats  on  another's  canal .^^  It 
cannot  be  said,  however,  that  the  courts  have  ordinarily 
shown  any  disposition  thus  to  restrict  the  power  of  the 
owner  of  land  to   subject  it  to  an   easement  in  favor 

14.  Richardson  v.  Pond,  15  Comp.  Laws  1913,  §§  5330,  5331; 
Gray.  (Mass.)  387.  Oklahoma    Rev.    Laws    1910,     §§ 

15.  Trauger  v.  Sassaman,  14  6623,  6624;  South  Dakota  Civil 
Pa.    514;     Benham  v.    Minor,  38  Code  1910,  §§  267,  268. 

Conn.  252.  22.     See    Eckert    v.    Peters,    55 

16.  Pye   V.   Mumford,   11   Q.   B.       N.  J.  Eq.  379,  36  Atl.   491. 

666.  23.     This  is  in  effect  the  state- 

17.  Goldman  v.  Beach  Front  ment  of  Brougham  L.  C.  in  Kep- 
Realty  Co.,  83  N.  J.  L.  97,  83  pel  v.  Bailey,  2  Myl.  &  K.  p.  535, 
Atl.  777.  made     in     connection     with     the 

18.  Wood  V.  Hewett,  8  Q.  B.  right  to  enforce  an  affirmative 
913.  covenant  as  against  a  transferee 

19.  Rolle  V.  Whyte,  L.  R.  3  Q.  of  the  covenantor.  It  is  quoted 
B.  286;  Leconfeld  v.  Lonsdale,  L.  with  approval  in  Ackroyd  v. 
R.   5   a  P.   657.  Smith,   10   C.   B.   164,   and   Hill   v. 

20-21.     See  California  Civ.  Code,       Tupper,  2  Hurlst.  &  C.  121. 
§§  801,  802;  Montana  Rev.  Codes,  24.     Hill  v.  Tupper,  2  Hurlst.  & 

1907,  §§  4507,  4508;  North  Dakota       C.   121. 


^  361]  Easements.  1257 

of  another,  and,  as  a  matter  of  fact,  as  appears  from 
the  preceding  paragraph,  they  have  quite  freeh^  allowed 
incidents  of  a  novel  kind  to  be  attached  to  property  in 
the  foi-m  of  easements,  as  they  have  in  the  form  of 
covenants. 

II.     The  Creation  of  Easements. 

§  361.  Express  grant.  The  various  classes  of  vesti- 
tive  facts  bv  means  of  which  an  easement  can  be  created 
may  be  enumerated  as  follows:  (1)  Express  grant; 
(2)^  Reservation  or  exception  in  a  conveyance  of  land; 
(3)  Implied  grant  or  reservation;  (4)  Prescription; 
(5)  A  statutory  proceeding,  usually  under  the  power  of 
eminent  domain;  (6)  Estoppel.  The  first  of  these  will 
be  considered  in  this  section,  and  the  others  in  the 
sections  following. 

Easements,  involving  as  they  do  no  possession  or 
seisin  of  the  land,  were  never  capable  of  creation  by 
livery  of  seisin,  and  an  owner  of  land  desirous  of 
creating  an  easement  in  favor  of  another  could  do  so 
only  by  grant,  that  is,  by  a  written  instrument  under 
seal.  The  necessity  for  this  purpose  of  an  instrument 
under  seal  still  exists,^^  except  in  so  far  as  seals  may, 
in  the  particular  jurisdiction,  have  been  abolished  or 
have  lost  their  efficacy.  In  equity,  however,  it  appears 
that  an  instrument,  not  under  seal,  by  which  it  is 
sought  to  create  an  easement  or  right  of  profit,  if  based 

25.     Wood     V.     Leadbitter,     13  land,   2   Gray    (Mass.)    302;    Fuhr 

Mees.  &  W.  842;  Somerset  v.  Fog-  v.  Dean,  26  Mo.  116,  69  Am.  Dec. 

well,   5   Barn.   &   C.    875;    Bird  v.  484;    Blaisdell   v.   Portsmouth,   G. 

Hlgginson,    2    Adol.    &    E.    696,    6  F.    &    C.    R.    Co.,    51    N.    H.    483; 

Adol.  &  E.  824;  Hewlins  v.  Ship-  Veghte   v.    Raritan   Water   Power 

pam,   5   Barn.   &  C.   221;    Shipley  Co.,   19  N.  J.  Eq.  142;   Thompson 

V.  Fink,  102  Md.  219,  2  L.  R.  A.  v.  Gregory,  4  Johns.  (N.  Y.)  81,  4 

(N.    S.)    1002,    62    Atl.    360;    Dyer  Am.   Dec.  255;   Wilkins  v.   Irvine, 

V.   Sanford,   9   Mete.    (Mass.)    395,  33  Ohio  St.  138;  Huff  v.  McCauley, 

43  Am.  Dec.  399;   Morse  v.  Cope-  53   Pa.  St.   206,   91  Am.   Dec.  203. 


1258 


Real  Peopekty. 


[§  361 


on  a  valuable  consideration,  will  be  given  effect  as  a 
contract  to  create  an  easement.-^^ 

Even  apart  from  the  common-law  requirement  that 
the  grant  of  an  easement  shall  be  by  writing  under  seal, 
a  wanting  is  necessary,  under  the  Statute  of  Frauds,  and 
an  attempted  oral  grant  of  an  easement  is  no  more  than 
a  license.2*^  In  courts  exercising  equitable  powers, 
however,  as  before  stated,^"  if  the  intended  gi^antee 
makes  expenditures  on  the  faith  of  the  attempted  oral 
grant,  the  intending  grantor  is  estopped  to  deny  the 
validity  of  the  grant,  or  as  it  might  be  otherwise  ex- 
})ressed,  the  attempted  oral  grant  is  given  effect  on  the 
theory  of  part  performance. 

What  is  in  form  a  covenant  merely — that  is,  an 
agreement  under  seal — may  operate  as  the  grant  of  an 
easement,  when  this  is  clearly  the  intention  of  the 
parties. ^^  For  instance,  a  covenant  by  A  that  B  shall 


25a.  Frogley  v.  Lovelace, 
Johns  333;  Jones  v.  TankerviUe 
(1909)  2  Ch.  440;  Ashelford  v. 
Wills,   194   111.   492,   62   X.   E.   817. 

26.  Profile  Cotton  Mills  v.  Cal- 
houn Water  Co.,  189  Ala.  181,  66 
So.  50;  Davis  v.  Tway,  16  Ariz. 
566,  L.  R.  A.  1915E,  604,  147  Pac. 
750;  Empire  Inv.^stment  Co.  v. 
Mort,  169  Cal.  732,  147  Pac.  960; 
Workman  v.  Stephenson,  26 
Colo.  App.  339,  144  Pac. 
1126;  McReynolds  v.  Har- 
rigfeld,  26  Idaho,  26,  140  Pac. 
1096;  Wilmington  Water-Power 
Co.  v.  Evans,  166  111.  548.  46  N.  E. 
1083;  Bonelli  v.  Blakemore,  66 
:Miss.  136,  14  Am.  St.  Rep.  550, 
5  So.  228;  Banghart  v.  Flummer- 
felt,  43  N.  J.  Law  28;  Huff  v. 
McCauley,  53  Pa.  St.  206,  91  Am. 
Dec.  203;  Harris  v.  Miller,  Meigs 
(Tenn.)  158,  33  Am.  Dec.  138; 
Maple  Orchard  Grove  &  Vine- 
yard   Co.    V.    Marshall,    27    Utah, 


215,  75  Pac.  369;  Rice  v.  Roberts, 
24  Wis.  461,  1  Am.  Rep.  195. 

27.  Ante^  §  349(d),  notes  44- 
49. 

28.  Hiolms  V.  Seller,  3  Lev. 
305;  Rowbotham  v.  Wilson,  8  H. 
L.  Cas.  348,  362;  McCarthy  v.  Nic- 
rcsi,  72  Ala.  332,  47  Am.  Rep. 
418;  Willoughby  v.  Lawrence,  116 
111.  11,  56  Am.  Rep.  758.  4  N.  E. 
356;  Harris  v.  Dozler,  72  111.  App. 
542;  Hogan  v.  Barry,  143  Mass. 
538,  10  N.  E.  253;  Ladd  v.  City 
of  Boston,  151  Mass.  585,  21  Am. 
St.  Rep.  481,  24  X.  E.  858;  Kettle 
River  R.  Co.  v.  Eastern  Ry.  Co., 
41  Minn.  472,  6  L.  R.  A.  Ill,  43 
X.  W.  469;  Barr  v  Lamaster.  48 
Xeb.  114,  32  L.  R.  A.  451,  66  X.  W. 
1110;  First  Xat.  Bank  v.  Ports- 
mouth Sav.  Bank,  71  N.  H.  547, 
53  Atl.  1017;  Wetmore  v.  Bruce, 
118  N.  Y.  319,  23  N.  E.  303:  Xor- 
fleet  V.  Cromwell,  64  X.  C.  1; 
:\Iorton  V.  Thompson,  69  Vt.  432. 


§  361] 


Easements. 


1259 


have  a  riglit  of  wav  over  his,  A's  land,  may  be  regarded 
as  in  effect  a  grant  of  a  right  of  way  by  A,  m  favor  of 

Tlie  grant  of  an  easement  may  properly  provide  for 
a  future  extension  of  the  user  of  the  servient  tenement 
to    correspond    with    future    requirements    in    that   re- 

gard.^^^ 

It  has  been  the  subject  of  learned  discussion  m 
England,-^  whether,  in  a  grant  of  an  easement,  m 
order  to  confer  an  interest  for  longer  than  the  grantee's 
life,  words  of  inheritance  must  be  used.^*^  In  this 
country  it  has  occasionally  been  assumed  that  they  are 
necessaiy  for  this  purpose,^  ^  in  the  absence  of  any 
statutorv  provision  making  a  conveyance  effective  to 
create  an  estate  in  fee  simple  without  the  use  of  such 
words,22  g^^ch  as  has  been  before  referred  to.^'^ 

Whether  an  instrument  is  a  grant  of  an  easement 
in  particular  land,^'^^^  or  a  transfer  of  the  ownership  of 


38  Atl.  88;  Kalinowski  v.  Jacob- 
owoski,  52  Wash.  359,  100  Pac. 
852;  Warren  v.  Syme,  7  W.  Va. 
475;  In  re  Barhausen,  142  Wis. 
292,'  124  N.  W.  649,  125  N.  W. 
680. 

Likewise  what  is  in  form  a 
release  may,  under  the  particular 
circumstances  of  the  case,  be  con- 
strued as  the  grant  of  an  ease- 
ment. Walterman  v.  Norwalk,  145 
Wis.  663,  130  N.  W.  479. 

28a.  Patterson  v.  Chambers 
Power  Co.,  81  Ore.  328,  159  Pac. 
568,  and  cases  there  cited.  And 
see  post.  §  369. 

29.  See  articles  in  24  Law 
Quart.  Rev.  at  pp.  199,  259,  264. 

30.  ITiere  is  a  (.UcUim  to  the 
effect  that  such  words  are  neces- 
sary in  Hewlins  v.  Shippam,  h 
B.  &  C.  221,  228.  They  are  in 
practice  invariably  inserted. 

31.  Bean  v.  French,  140  Mass. 


229,  3  N.  E.  206;  Hogan  v.  Barry, 
143  Mass.  538,  10  N.  E.  253.  And 
see  cases  cited  /'o.v/,  §  362,  note 
65. 

But  even  in  a  state  in  which 
such  words  are  regarded  as  neces- 
sary in  the  case  of  the  grant  of 
an  easement,  they  are  not  neces- 
sary in  order  to  give  an  easement 
by  partition  decree.  Bornstein  v. 
Doherty,  204  Mass.  280,  90  N.  E. 
531. 

32.  See  Stovall  v.  Coggins 
Granite  Co.,  116  Ga.  376,  42  S.  E. 
723;  GoodwiUie  Co.  v.  Common- 
wealth Electric  Co.,  241  111.  42, 
89  N.  E.  272;  Hagerty  v.  Lee,  54 
X.  J.  L.  580,  20  L.  R.  A.  631,  25 
Atl.  319;  Karmuller  v.  Krotz,  18 
Iowa,  352;  Whitney  v.  Richardson, 
59  Hun.  (N.  Y.)  601;  Borst  v. 
Empire,  5  N.  Y.  33   (semble). 

33.  Avtv,   §    21(a). 

33a.     As  in  Pellissier  v.  Corker, 


1260 


Real  Property. 


[§  361 


such  land,  with  a  specification  of  the  user  which  is  ex- 
pected to  be  made  of  the  land,"*  is  obviously  a  question 
of  construction  of  the  language  used.  That  the  con- 
veyance is  in  terms  of  land  does  not  necessarily  pre- 
vent a  construction  thereof  as  creating  only  an  ease- 
ment in  the  land.^'*'' 

One  can  obviously  not  create  an  easement  upon  land 
belonging  to  another,  and  for  this  reason  one  who  has 
an  undivided  interest  only  in  the  land  cannot  create  an 
easement    therein."^      There    are,    however,    occasional 


103  Cal.  516.  37  Pac.  465;  Cin- 
cinnati, I.  St.  L.  &  C.  Ry.  Co.,  V. 
Geisel,  119  Ind.  77,  21  N.  E.  470; 
Nichols  V.  New  England  Furniture 
Co.,  100  Mich.  230,  59  N.  W.  155; 
Maxwell  v.  McCall,  145  Iowa,  687, 
124  N.  W.  760;  Samples  v.  Smythe, 
32  Ky.  L.  Rep.  187,  105  S.  W.  415; 
Callaway  v.  Forest  Park  High- 
lands Co.,  113  Md.  1,  77  Atl.  141; 
Beasley  v.  Aberdeen  &  Rocktish 
R.  Co.,  145  N.  Car.  272,  59  S.  E. 
60;  Wason  v.  Pilz,  31  Ore.  9,  48 
Pac.  701;  Robinson  v.  Missisquoi 
R.  Co.,  59  Vt.  426,  10  Atl.  522; 
Reichenbach  v.  Washington  Short 
Line  Ry.  Co.,  10  Wash.  357,  38 
Pac.  1126. 

34.  As  in  Weihe  v.  Lorenz,  254 
111.  195,  98  N.  B.  268;  Low  v. 
Streeter,  66  N.  H.  36,  9  L.  R.  A. 
271,  20  Atl.  247;  Blauvelt  v.  Pas- 
saic Water  Co..  75  N.  J.  Eq.  351, 
72  Atl.  1091;  Kilmer  v.  Wilson, 
49  Barb.  (N.  Y.)  86;  AumiUer  v. 
Dash,  51  Wash.  520,  99  Pac.  583; 
Mitchell  V.  Prepont,  68  Vt.  613, 
35  Atl.  496.  See  Abercrombie  v. 
Simmons,  71  Kan.  538,  114  Am.  St. 
Rep.  509,  1  L.  R.  A.  N.  S.  806, 
6  Ann.  Cas.  239,  81  Pac.  208. 

That  there  is  given  a  right  of 
exclusive   user   of  a   part   of  the 


land,  either  on  the  surface,  or  in 
a  stratum  below  the  surface,  ap- 
pears, according  to  the  English 
cases,  to  indicate  conclusively 
that  something  more  than  an 
easement  is  transferred,  that  thfi 
ownership  of  the  land  is  to  that 
extent  conveyed.  See  article  by 
Charles  Sweet,  Esq.,  on  "The 
'Easement'  of  Tunnelling,"  32 
Law  Quart.  Rev.  70;  Taylor  v. 
Corporation  of  St.  Helens,  6  Ch. 
D.  264;  Reilly  v.  Booth,  44  Ch. 
D.  12.  To  the  same  effect  appear 
to  be  the  American  cases,  Little- 
field  V.  Maxwell,  31  Me.  134; 
Cortelyou  v.  Van  Brunt,  2  Johns. 
(N.  Y.)  357.  Compare  cases  cited 
ante,   §   360,  note   12. 

34a.  Overton  v.  Moseley,  135 
Ala.  599,  33  So.  696;  Robinson  v. 
Missisquoi  R.  R.  Co.,  59  Vt.  426, 
10  Atl.  522;  Biles  v.  Tacoma  R. 
Co.,  5  Wash.  509,  32  Pac.  211. 

35.  Pfeiffer  v.  University  of 
California,  74  Cal.  156,  10  Pac. 
622;  Collins  v.  Prentice,  15  Conn. 
423;  Marshall  v.  Peck,  28  Conn. 
183;  Clark  v.  Parker,  106  Mass. 
554;  Crippen  v.  Morse,  49  N.  Y. 
63;    Palmer  v.  Palmer,  150  N.  Y. 


§  361]  Easements.  1261' 

decisions  to  the  effect  that  if  a  cotenant  does  grant 
an  easement,  the  grantee  can  demand  a  partition  in 
order  that  the  easement  may  be  established  upon  that 
part  of  the  hind  allotted  to  his  grantor.^^ 

The  creation  of  an  easement  by  devise,  which  oc- 
curs but  infrequently,  may  be  considered  as  one  phase 
of  the  creation  of  easements  by  grant.-^''^  It  occurs 
when  the  testator,  in  devising  land,  provides  that  tlie 
de^^isee  shall  have  an  easement  over  other  land  belong- 
ing to  him.'"^  And  the  acquisition  of  an  easement  by 
condemnation,^"^  or,  by  what  may  be  regarded  as 
closely  analogous  thereto,  the  payment  of  a  judgment 
for  damages  as  on  account  of  the  maintenance  of  a 
permanent  nuisance,^^*^  are  also  substantially  varieties 
of  acquisition  of  an  easement  by  grant,  as  is  the  ac- 
quisition of  an  easement  by  force  of  a  decree  in  parti- 
tion proceedings.^^® 

Party    wall    rights.      Occasionally    the    ownei 

of  land  grants  to  an  adjoining  owner  the  privilege  of 
utilizing  a  wall  already  constructed  on  the  former's 
land  as  a  party  wall,  that  is,  as  a  division  wall  and  for 
purposes   of  support.     More  usually,   however,   a  wall 

139,  55  Am.  St.  Rep.  653,  44  N.  McKenney  v.  McKenney,  216  Mass. 
E.  966.  It  follows  that  he  cannot  248,  103  N.  E.  631;  Wiley  v.  BaU, 
create  it  in  favor  of  land  owned  72  W.  Va.  685,  79  S.  E.  659. 
by  him  in  severalty.  Palmer  v.  36c.  Post.  §  561. 
Palmer,  150  X.  Y.  139,  55  Am.  St.  36d.  See  editorial  note,  7  Co- 
Rep.  653,  44  N.  E.  966;  City  Club  umbia  Law  Rev.  at  p.  277;  Sedg- 
V.  McGeer,  198  N.  Y.  160,  91  N.  wick.  Damages,  §§  93,  95,  924, 
E.  539.  924a;  LeAvis,  Eminent  Domain,  §5 

36.     Charleston,  C.  &  C.  R.  Co.  937,  948. 

V.  Leech,  33  So.  Car.  175,  26  Am.  36e.    See  e.  g..  Mount  Hope  Iron 

St.   Rep.   6fi7,    11   S.   E.   631;    Mc-  Co.  v.  Dearden,  140  Mass.  430,  4 

Elroy   V.   McLeay,   71   Vt.   396,   45  N.  E.   803;    Bornstein  v.   Doherty, 

Atl.  898.  204  Mass.  280.,  90  N.  E.  531;  Bean 

36a.     See   Goddard,   Easements,  v.  Coleman,  44  N.  H.  539;    RicU- 

(6th  Ed.)  125.  ardson    v.    Arraington,    10    R.    I. 

36b.    See  e.  g.,  Lide  v.  Hadley,  ii^. 
.?6    Ala.    627,    76    Am.    Dec.    338; 
2  R.  P.— 5 


1262  Eeal  Property.  [§  361 

acquires  the  characteristics  of  a  party  wall  by  reason 
of  what  is  known  as  a  party  wall  agreement,  executed 
before  the  erection  of  the  wall.  For  instance,  if  A  and 
B  own  adjoining  lots,  and  A  contemplates  the  erection 
of  a  building  on  his  lot,  they  may  enter  into  an  agree- 
ment by  which  A  acquires  from  B  the  privilege  of 
placing  one  wall  of  the  building,  to  the  extent  of  half 
its  thickness,  upon  B's  land,  with  a  stipulation  that 
B  may  use  the  wall  for  the  purpose  of  such  building 
as  he  may  desire  to  erect,  upon  payment  by  him  of  one- 
half,  or  other  proportioned  part,  of  the  cost  of  the 
wall.  Or  it  may  be  that,  without  specifying  which  is 
to  erect  the  wall,  it  is  provided  that  the  one  erecting  it 
may  place  one-half  upon  the  other's  land,  and  that 
the  other  may  utilize  the  wall  upon  paying  part  of  the 
cost.  Assuming  that  A  is  the  one  who  is  to  erect  the 
wall,  it  would  seem  that  B's  agTeement  that  he  may 
erect  it  in  part  on  B's  land  involves  the  grant  to  A  of 
an  easement  in  B's  land,  while  A's  agreement  that  B 
ma}^  utilize  the  wall  on  the  pajTuent  of  part  of  the 
cost  of  construction  involves  the  grant  of  an  easement 
in  A's  land  as  regards  the  part  of  the  wall  to  be  placed 
thereon.  And  likewise  if  it  is  not  specified  which  o^vner 
is  to  erect  the  wall,  there  are,  it  appears,  mutual  grants 
of  easements  between  the  parties.  As  to  the  ownership 
of  that  part  of  the  wall  erected  by  A  upon  B  's  land,  the 
cases  are  to  the  effect  that  it  belongs  to  A  until  B 
makes  use  of  it,"^  or  pays  a  part  of  its  cost  for  the 
purpose  of  utilizing  it,^^  whereupon  it  passes  into  the 
ownership  of  B. 

It  appears  somewhat  singular  that  no  question  has 
ever  been  judicially  suggested  as  to  whether  a  party 

37.  Maine  v.  Cumston,  98  Mass.  111.  437,  104  N.  E.  5;  Nat.  Life 
317;  Berry  v.  Godfrey,  198  Mass.  Ins.  Co.  of  Montpelier  v.  Lee,  75 
228,  84  N.  E.  304;  Hill  v.  Huron,  Minn.  157,  77  N.  W.  794;  Glover 
33  S.  Dak.  324,  145  N.  W.  570.  v.     Mersman,     4     Mo.     App.     90; 

38.  Mickel  v.  York,  175  111.  62,  Masson's  Appeal,  70  Pa.  St.  26. 
51  N.  E.  848;  Kuh  v.  O'Reilly,  261 


<^  361]  Easements.  1263 

wall  agreement  of  the  character  referred  to  is  not  in- 
valid under  the  Eule  against  Perpetuities.  If  the  agree- 
ment in  effect  provides  that  the  o^\^lership  of  part  of 
the  wall  is  to  change  at  an  indefinite  time  in  the  future, 
as  stated  in  the  cases  last  referred  to,  it  is  difficult  to 
see  why  such  provision  is  not  within  the  rule.  And 
even  apart  from  such  a  provision  for  a  change  in  the 
ownership  of  the  wall,  if  the  right  of  the  non  builder, 
or  of  his  successor  in  interest,  to  use  the  wall,  is 
dependent  on  the  pajinent  by  him  of  part  of  the  cost, 
a  construction  of  the  agreement  which  is  sometimes 
adopted,^^  such  an  attempt  to  create  an  easement  to 
arise  at  some  indefinite  time  in  the  future  would  seem 
to  be  within  the  rule.^°  Conflict  with  the  rule  could  be 
entirely  avoided,  it  is  conceived,  by  considering  the 
part  of  the  wall  erected  on  the  non  builder 's  land  as  con- 
tinuing to  be  the  property  of  the  builder  even  after 
user  and  payment  therefor  by  the  former,  or  as  being 
from  the  first  the  property  of  the  person  on  whose  land 
it  stands,  and  by  furthermore  considering  the  agreement 
as  immediately  creating  cross  easements  in  the  land  of 
each  proprietor,  with  a  contractual  liability  on  the 
part  of  the  non  builder  as  regards  part  of  the  cost  of 
the  wall. 

It  has  occasionally  l)een  suggested  that  such  an 
agreement  creates  the  relation  of  vendor  and  purchaser 
as  regards  that  part  of  the  wall  placed  on  the  non 
builder's  land,^^  that  it,  in  other  words,  creates  an 
option  in  the  non  builder  -to  purchase  that  part  of  the 
wall.  Such  a  construction  of  the  agreement  would  not 
protect  it  from  the  operation  of  the  Rule  against  Perpe- 

39.     As  apparently  in  Masson's  40.     Gray,    Perpetuities,    §    316. 

Appeal,  70  Pa.  26;  Conner  v.  Joy,  41.     See  Gibson  v.  Holrlen,   llf) 

—  Tex.   Civ.   App.   — ,    150    S.   W.  III.  199,  56  Am.  Rep.  146,  3  N.  E. 

485.      But     not    in     Matthews    v.  282;    McChesney  v.   Davis,   86   111. 

Dixey,  149  Mass.  595,  5  L.   R.  A.  App.   380;    8   Columbia  Law   Rev. 

102,  22  N.  E.  61;   Hill  v.  Huron,  at  p.  121. 
33  S.  Dak.  324,  145  X.  W.  570. 


1264  Eeal  Property.  [§  361 

tiiities,^^  and  it  does  not  appear  to  be  adopted  in  prac- 
tice, a  conveyance  of  that  part  of  the  wall  not  being  ex- 
ecuted upon  payment  by  the  non  builder  of  part  of  the 
cost,  as  we  might  expect  to  be  done  if  such  payment  in- 
volved the  consummation  of  a  purchase.  Furthermore, 
while  such  an  option  would  involve  in  effect  a  con- 
tract or  covenant  by  the  builder  to  convey  to  the  non 
builder  the  part  of  the  wall  on  the  latter 's  land,  when 
ever  the  latter  may  desire  to  use  the  wall,  upon  pay- 
ment by  the  latter  of  the  stipulated  part  of  the  cost,  yet 
the  possible  existence  of  such  a  contract  or  covenant  on 
the  part  of  the  builder  is  ignored  in  the  numerous 
cases  discussing  whether  the  benefit  or  burden  of  the 
agreement  to  pay  for  the  land  ^\^11  pass  to  successors 
in  title.^'^  In  view  of  this  omission  to  refer  to  any  such 
contract  or  covenant  in  this  connection,  in  which  it 
would  most  properly  be  referred  to,  it  seems  reason- 
able to  conclude  that  the  theory  that  the  parties  stand 
in  the  relation  of  vendor  and  purchaser  as  regards 
the  wall  has  not  been  generally  adopted. 

A  party  wall  agreement  of  the  character  referred 
to,  involving  as  it  does  the  creation  of  easements  in 
land,  is  invalid  if  merely  oral.**  If,  however,  the  wall 
is  erected  in  accordance  with  the  agreement,  the  parties 
are,  it  appears,  in  the  same  position  as  if  the  agreement 
had  been  originally  valid.  The  agreement  involves  an 
attempted  oral  grant  by  one  proprietor  to  the  other  of 
an  easement  to  place  the  wall  in  part  on  the  former's 
land,  which  is,  on  the  theon^  of  part  performance  or  es- 
toppel,*'"*  validated  by  the  subsequent  construction  of 
the  wall  on  the  faith  thereof.**'     Such  grant  can,  how- 

42.  Gray,  Perpetuities,  §§  330-       Mass.  19,  5  L.  R.  A.  209,  15  Am. 
3S0c.  St.  Rep.  168,  22  N.  E.  73. 

43.  I'ost,  §§  393,  45.     Ante,    §    349(d),    notes    44- 

44.  Tillis     V.     Treadwen,  117       49. 

Ala.  445,  22  So.  983;  Rice  v.  Rob-  46.      Rawson  v.  Bell,  46  Ga.  19; 

erts,  24  Wis.  461,  1  Am.  Rep.  Russell  v.  Hubbard,  59  111.  335; 
195;   Hodgkins  v.  Farrington,  150       Wickersham  v.  Orr,  9   Iowa,  253. 


§  361]  Easements.  1265 

ever,  be  recognized  and  enforced  only  subject  to  the  con- 
ditions and  stipulations  to  which  it  was  originally  sub- 
ject, including  the  right  of  the  grantor  to  make  use  of 
the  wall  upon  the  payment  by  him  of  part  of  the  cost 
thereof.  So  far  as  concerns  the  personal  liability  of 
such  grantor  under  his  contract  to  pay  a  portion  of 
the  cost  of  the  wall  in  case  of  its  use  by  him,  conceding 
that  such  contract  is  within  the  Statute  of  Frauds, 
which  appears  somewhat  questionable,  it  is  validated, 
it  seems,  by  reason  of  the  part  performance  involved 
in  the  building  of  the  wall,^^  and  apart  from  the  doc- 
trine of  i)art  performance,  the  user  of  the  wall,  since 
this  belongs  to  the  builder  thereof,  would  involve  a 
liability  in  tort  or  upon  the  theory  of  quasi  con- 
tract. That  a  contract  to  pay  a  certain  sum  in  case 
one  makes  a  particular  use  of  another's  property  is 
invalid  under  the  statute  can  not  enable  him  to  make 
such  use  of  the  property  without  incurring  any  liability. 

If  the  proprietor  who,  by  the  terms  of  the  agree- 
ment, is  to  construct  the  partition  wall  on  the  division 
line  between  the  two  properties,  fails  to  extend  it  the 
full  length  of  that  line,  the  other,  it  has  been  held,  has 
the  privilege  of  so  extending  it.^^ 

What  constitutes  a  user  of  the  wall  by  B  which 
will  render  him  liable  under  his  covenant  to  A,  who 
constructed  the  wall,  for  part  of  the  cost  thereof,  is 

74  Am.  Dec.  348;   Horr  v.  Hollis,  not    build    it    has    been    regarded 

20  Wash.  424,  55  Pac.  565;  Miller  as    a    performance    which    takes 

V.  Brown,  33  Ohio  St.  547.  his  contract  to  pay  a  part  of  the 

47.     See  Rawson  v.  Bell,  46  Ga.  cost  out  of  the  statute.     Walker 

19;    Rindge    v.    Baker,    57    N.    Y.  v.  Shackelford,  49  Ark.  503,  4  Am. 

209;     Stuht    v.    Sweesy,    48    Neb.  St.  Rep.  61,  5  S.  W.  887;  Pireaux 

767,  67  N.  W.  748;    Swift  v.   Cal-  v.  Simon,  79   Wis.   392,   48  N.  W. 

nan,   102   Iowa,   206,   37   L.   R.   A.  G74. 

462,    63   Am.   St.   Rep.   443,   71   N.  48.     Matthews     v.     Dixey.     149 

W.  233;   Rice  v.  Roberts,  24  Wis.  Mass.  595,  22  N.  E.  61;   Negus  v. 

461,  1  Am.  Rep.  195.  Becker,   72   Hun    (N.    Y.)    479,   25 

Occasionally    the     user     of    the  N.  Y.  Supp.  640. 
wall    by    the   proprietor    who    did 


1266  Real,  Peoperty.  [§  362 

l^rimarily  a  matter  of  the  constiniction  of  the  covenant. 
A  user  of  the  wall  in  the  course  of  the  reconstruction 
of  an  existing  building,  as  distinguished  from  its  use 
in  the  erection  of  a  new  building,  has,  in  particular 
cases,  been  regarded  as  insufficient  to  impose  a  liabil- 
ity.^^ And  a  like  view  has  been  taken  of  the  erection  by 
B  of  another  wall  impinging  upon  the  wall  built  by  A, 
although  the  existence  of  this  latter  wall  enables  B  to 
make  his  wall  of  lighter  construction.^"  In  one  case  a 
covenant  to  pay  part  of  the  cost  of  the  wall  when  the 
covenantor  used  it  was  construed  to  involve  an  obliga- 
tion upon  his  part  to  use  the  wall  in  a  reasonable 
time,^^  and  in  two  cases  the  court  appears  to  have  con- 
strued such  a  covenant  as  involving  a  liability  upon 
the  covenantor  if  he  conveyed  his  land  and  so  put  it 
out  of  his  power  to  use  the  wall.^^ 

§  362.    Express  reservation  or  exception.     By  the 

law  of  England,  an  ''exception"  in  a  conveyance  merely 
withdraws  from  the  operation  of  the  conveyance  a  pan 
of  the  thing  conveyed  as  a  whole,  and  a  "reservation" 
merely  provides  for  the  rendition  to  the  grantor  of 
something,  such  as  a  rent  or  service,  which  is  regarded 
as   issuing  from  the  thing  granted.^^"^^     An   easement 

49.  Shaw  V.  Hitclicock,  119  not  to  include  one  half  the  cost 
Mass.  254;  Fox  v.  Mission  Free  of  additions  made  by  a  purchaser 
School,  120  Mo.  349,  25  S.  W.  172.  from  the  buil:^er,  on  his  own  land, 

50.  Kingsland  v.  Tucker,  115  N.  for  the  purpose  of  strengthening 
Y.  574,  22  N.  E.  268;  Sheldon  the  wall  for  his  own  purposes. 
Bank  v.  Royce,  84  Iowa,  288,  50  Walker  v.  Stetson,  162  Mass.  86, 
N.  W.  986.  44  Am.   St.  Rep.  350,  38  N.  E.  IS. 

That    the    builder    of    the    Avail  51.     Sherley  v.  Burns,  22  Ky.  L. 

failed   to   extend   it  over  a  small  Rep.  788,  58  S.  W.  69. 

portion  of  the  division  line  as  he  52.     Rawson  v  Bell,  46  Ga.  19; 

agreed    to    do    was    held    not    to  Nalle    v.    Paggi,    81    Tex.    201,    13 

prevent  recovery  upon  the  other's  L.  R.  A.  50,  16  S.  W.  932.  Compare 

covenant.    Keith  v.  Ridge,  146  Mo.  Hurford   v.    Smith,   24    Okla.    448, 

90,  47  S.  W.  904.  103    Pac.    851.      And   cases    cited 

The    covenant   to   pay   one-half  post,   §   393(b),   note  74. 

of  the  cost  of  the  wall  was  held  53-57.     See  post,   §  436. 


§  362] 


Easements. 


1267 


in  the  land  conveyed  is  regarded  as  neither  a  part  of  the 
land  nor  as  issuing  therefrom,  and  consequently,  in 
that  country,  if,  upon  the  conveyance  of  land,  there  is 
in  terms  a  reservation  or  exception,  in  favor  of  the 
grantor,  of  an  easement  in  the  land,  these  words  are 
construed  as  in  eft'ect  a  re-grant  of  the  easement  by 
the  grantee  of  the  land  to  the  grantor,  which  can  take 
effect  only  if  the  instrument  is  executed  by  such 
grantee.^^  In  this  country,  however,  the  view  of  the 
common  law  as  to  the  restricted  functions  of  an  ex- 
ception and  a  reservation  is  not  usually  adopted,^^  and 
it  is  held  that  an  easement  in  the  land  conveyed  may 
be  created  by  a  reservation,*^^  and  in  some  states  even 
by  an  exception,*'^  and  consequently,  the  fact  that  the 
instrument  is  not  executed  by  the  grantee  of  the  land  as 
well  as  by  the  grantor  is  immaterial.  Occasionally  it  has 
been  decided  that  an  easement  may  properly  be  created 
by  a  reservation  but  not  by  an  except'ion,^-  and,  having 


58.  Durham  &  S.  Ry.  Co.  v. 
Walker,  2  Q.  B.  940;  Wickham  v. 
Hawker,  7  Mees.  &  W.  63;  Corpo- 
ration of  London  v.  Riggs,  13  Ch. 
Div.  798. 

59.  See  post,  §  436. 

60.  Chai>pell  v.  New  York,  N. 
H.  &  H.  R.  Co.,  62  Conn.  195, 
17  L.  R.  A.  420,  24  Atl.  997; 
Kuecken  v.  Voltz,  110  111.  264; 
Morrison  v.  Chicago  &  N.  W. 
Ry.  Co.,  117  Iowa,  587, 
91  N.  W.  793;  Wendell 
V.  Helm,  87  Kan.  136,  123  Pac. 
869;  Inhabitants  of  WMnthrop  v. 
Fairbanks,  41  .Me.  307;  Damron  v. 
Justice,  162  Ky.  101,  172  S.  W. 
120;  Kent  v.  Waite,  10  Pick. 
(Mass.)  138;  Bowen  v.  Conner,  6 
Cush.  (Mass.)  132;  Claflin  v.  Bos- 
ton &  A.  R.  Co.,  157  Mass.  480, 
20  L.  R.  A.  638,  32  N.  E.  659; 
Haggerty    v.    Lee,    54    N.    J.    Law 


580,  50  N.  J.  Eq.  464,  20  L.  R.  A. 
631,  25  Atl.  319;  Borst  v.  Empie, 
1  Seld.  N.  Y.  33;  Rose  v.  Bunn, 
21  N.  Y.  275;  Grafton  v.  ;\Ioir, 
130  N.  Y.  465,  27  Am.  St.  Rep. 
533,  29  N.  E.  974;  Richardson  v. 
Clements,  89  Pa.  St.  503,  33  Am. 
Rep.  784;  Kister  v.  Reeser,  98  Pa. 
St.  1,  42  Am.  Rep.  608;  Fischer  v. 
Laack,  76  Wis.  313,  45  N.  W.  104. 

61.  Inhabitants  of  Winthrop  v. 
Fairbanks,  41  Me.  307;  Ring  v. 
Walker,  87  Me.  550,  33  Atl.  174; 
Claflin  V.  Boston  &  A.  R.  Co., 
157  Mass.  489,  20  L.  R.  A.  638,  32 
N.  E.  659;  Bridser  v.  Pierson,  45 
N.  Y.  601;  Lcavitt  v.  Towle,  8  N. 
H.  96. 

62.  City  Club  of  Auburn  v.  .Mc- 
Geer,  198  N.  Y.  160,  91  N.  E.  539, 
92  N.  E.  105;  Gill  v.  Fletcher.  74 
Ohio  St.  295,  113  Am.  St.  Rep. 
962,  78  N.  E.  433;  Kister  v.  Reeser, 


1268 


Eeal  Property. 


[§  362 


regard  to  the  nature  of  a  reservation  and  of  an  exception 
at  common  law,  sucli  a  view  appears  to  be  a  reasonable 
one.  The  assumption  that  an  easement  may  be  created 
by  exception  as  well  as  by  reservation  has  resulted  in 
much  confusion  in  particular  cases/'^ 

In  some  states  it  is  considered  that  words  of  in- 
heritance must  be  used  in  the  reservation  of  an  ease- 
ment in  order  that  the  grantor  may  acquire  an  ease- 
ment to  endure  longer  than  his  own  life,^^  In  other 
states  such  words  are  regarded  as  unnecessary  by 
reason  of  the  general  statutory  provisions  dispensing 
with  the  necessity  of  such  words  in  order  to  create  an 
estate  in  fee  simiDle.*'*'  In  a  few  states  the  use  of  such 
words  has  been  regarded  as  unnecessary  on  the  theory 
that,  the  reservation  being  evidently  intended  to  be 
for  the  benefit  of  neighboring  land  retained  by  the 
grantor,  his  easement  is  to  be  regarded  as  unlimited  in 
point  of  duration."*"     This  latter  view  harmonizes  with 


98  Pa.  1;  Riefler  &  Sons  v.  Wayne 
Storage  Water  Power  Co.,  232  Pa. 
282,  81  Atl.  300. 

64.  Post,   §  436. 

65.  Koelle  v.  Knecht,  99  I'.l. 
396;  Dawson  v.  Western  Md.  R. 
Co.,  107  Md.  70,  14  L.  R.  A.  (X.  S.) 
809,  126  Am.  St.  Rep.  337,  15  Ann. 
Cas.  678,  68  Atl.  301;  Bean  v. 
French,  140  Mass.  229;  Childs  v. 
Boston  &  M.  R.  R.,  213  Mass.   91, 

99  N.  E.  957;  Hornbeck  v.  West- 
brook,  9  Johns.  (N.  Y.)  73;  Kister 
V.  Rieser,  98  Pa.  1.  And  so  it 
has  been  said  that  the  word  "heirs  ' 
is  necessary  in  the  case  of  a  res- 
ervation of  oil  and  gas,  but  not 
in  the  case  of  an  exception  of  oil 
and  gas.  Mandle  v.  Gharing,  256 
Pa.  121,  100  Atl.  535. 

66.  Webb  v.  Jones,  163  Ala. 
637,  50  So.  887;  Presbyterian 
Church  of  Osceola  v.  Harken,  177 


Iowa,  195,  158  N.  W.  692;  Bein- 
lem  V.  Johns.  102  Ky.  570,  44  S. 
W.  128;  Ruffin  v.  Seaboard  Air 
Line  Rwy.,  151  N.  Car.  330,  66 
S.  E.  317;  Rubnke  v.  Aubert,  58 
Ore.  6,  113  Pac.  38;  Forde  v. 
Libby,  22  Wyo.  464,  143  Pac.  1190. 
67.  Webb  v.  Jones,  163  Ala. 
637,  50  So.  887  (dictum);  Chap- 
pell  V.  N.  Y.,  N.  H.  &  H.  R.  Co., 
62  Conn.  195,  17  L.  R.  A.  420, 
24  Atl.  997;  Teachout  v.  Capital 
Lodge  I.  0.  O.  P.,  128  Iowa,  380, 
104  X.  W.  440;  Ring  v.  Walker, 
87  Me.  550,  33  Atl.  174;  Engel  v. 
Ayer,  85  Me.  448,  27  Atl.  352; 
Lathrop  v.  Eisner,  93  Mich.  599, 
53  N.  W.  791;  Smith  v.  Furbish, 
68  N.  H.  123,  47  L.  R.  A.  226.  44 
Atl.  398.  But  as  to  Maine  see 
Winthrop  v.  Fairbanks,  41  Me. 
307;  Dana  v.  Smith,  114  Me.  262, 
95   At.   1034. 


«^  362]  Easements.  1269 

the  common  law  rule  that  the  reservation  of  rent 
upon  a  lease  by  one  having  a  fee  simple  estate,  without 
the  mention  of  heirs,  gives  the  lessor  an  interest  in 
the  rent  which  passes  upon  his  death  to  his  lieirs,  as 
partaking  of  the  character  of  the  reversion  to  which  it 
appertains. ^^ 

In  so  far  as  it  may  be  considered  that  an  easement 
may  be  created  by  an  exception,  it  is  generally  agreed 
tliat  words  of  inheritance  are  unnecessary,  in  order  to 
give  to  the  grantor  of  the  land  an  interest  in  the  ease- 
ment to  endure  beyond  his  life.*^^ 

An  easement  in  gross  is  ordinarily  regarded,  as 
above  stated,  as  being  purely  personal  to  the  person 
in  favor  of  whom  it  is  created,'*^  and  consequently  a 
reservation  of  such  an  easement  would  usually  create 
an  easement  for  the  grantor's  life  only,  in  the  ab- 
sence at  least  of  language  indicative  of  a  contrary 
intention. 

That  an  easement  cannot  be  created  by  reservation 
in  favor  of  a  person  other  than  the  grantor  in  the 
conveyance  has  been  frequently  asserted,'^  but  there 
are  to  be  found  cases  which  are  not  in  accord  with 
such  a  view.'-  The  important  consideration  in  that 
regard  would  appear  to  be  whether  the  language  of 
reservation  in  the  particular  case  in  favor  of  a   third 

68.  Co.  Litt.  47a;  2  Piatt,  H.  &  H.  R.  Co.,  *62  Conn.  195,  17 
Leases,  88;  Gilbert,  Rents,  64;  L.  R.  A.  420,  24  Atl.  997;  Win- 
Jaques  v.  Gould,  4  Cush.  (Mass.)  throp  v.  Fairbanks,  41  Me.  307; 
384.  Mclntire  v.  Lauckner,  108  Me.  443, 

In    Smith's    Ex'cr   v.    Jones,    86  SI  Atl.  784;   Foster  v.  Smith,  211 

Vt.  258,  84  Atl.  866.  that  the  ease-  Mass.   411,  98   N.  E.   693;    Lipsky 

ment  was  appurtenant  appears  to  v.  Heller,  199  Mass.  310,  85  N.  E. 

have  been   regarded  as  a  reason  453;    Smith's   Ex'cr   v.   Jones,   86 

for    construing    the    language    as  Vt.    258,    84    Atl.    866;    Ruffin    v. 

an   exception,   in   order   that,   al-  Seaboard   Air   Line,    151    N.   Car. 

though  without  words  of   inheri-  330,  66  S.  E.  317. 

tance,  it   might  endure   after   the  70.     Aiilr,  §  350,  note  3. 

grantor's   life.  71.     Post,   §   436. 

69.  Chappell   v.   New   York,   N.  72.     Post,  §  436. 


1270  Eeal  Property.  [§  363 

person  can  be  construed  as  the  grant  of  an  easement 
to  such  person. 

As  words  of  covenant  may  operate  as  a  grant  of  an 
easement,^^  they  may  operate  as  a  reservation,  as 
when  one  accepts  a  conveyance  of  land  to  him,  which 
contains  an  agreement  on  his  part  that  the  grantor  of 
the  land  may  use  such  land  in  a  certain  way,  or  that 
he,  the  grantee,  shall  allow  it  to  be  used  in  a  certain 
way.'^"^^ 

§363.     "Implied"    grant    or    reservation. (a) 

General  considerations.  Frequently,  although  there  is 
no  grant  of  an  easement  in  express  terms,  an  easement 
is  regarded  as  arising  in  connection  with  a  conveyance 
of  land,  either  for  the  benefit  of  the  land  conveyed  as 
against  land  retained  by  the  grantor,  or  for  the  benefit 
of  land  retained  by  the  grantor  as  against  the  land  con- 
veyed, the  former  being  referred  to  as  a  case  of  the 
"implied  grant"  of  an  easement,  and  the  latter  being 
referred  to  as  a  case  of  the  "implied  reservation"  of 
an  easement. 

This  doctrine  of  implied  grant  and  implied  reserva- 
tion finds  its  practical  application  in  connection  with  the 
question  whether,  upon  a  severance  of  ownership  of 
land,  an  easement  is  created  corresponding  to  a  pre- 
existing "quasi  easement,"^-  and  also  in  connection  with 
the  question  of  the  existence  of  an  "easement  of 
necessity."*^ 

Theory  of  implied  grant.     In  the  case  of  an 


easement  arising  in  favor  of  the   grantee   of  land   as 
corresponding    to    a    preexisting    quasi    easement,    as 

well  as  in  the  case   of  an  easement  of  necessity,   the 

73.     Ante,   §    361,  note   28.  680. 

74-81.     Weller    v.    Brown,    160  82.     Post,  this  section,  notes  85- 

Cal.  515,  117  Pac.  517;  Hathaway  50. 

V.    Hathaway,    159    Mass.    584,    35  83.     Post,  this  section,  notes  51- 

X.   E.   85;        Re   Barkhausen,   142  3b. 
Wis.  292,  124  X.  W.  649,  125  N.  W. 


§  363]  Easements.  1271 

easement  is  res^arded  as  existing  on  the  theory  that 
the  grantor  and  grantee  of  the  land  intend  that  it  shall 
exist,  and  the  courts  merely  declare  in  effect  that  the 
particular  circumstances  of  the  transaction  raise  a  pre- 
sumption of  such  an  intention.  Since  the  easement  thus 
arises  as  the  result  of  an  intention  imputed  to  the 
parties  that  it  shall  arise,  it  exists,  properly  speaking, 
by  reason  of  an  express  rather  than  an  implied 
grant.  This  being  so,  a  question  suggests  itself 
as  to  how,  in  view  of  the  Statute  of  Frauds,  and  the 
recognized  necessity,  at  common  law,  of  a  grant  under 
seal  in  order  to  create  an  easement,  a  grantee 
of  land  can  be  regarded  as  acquiring,  as  ap- 
purtenant to  the  land,  an  easement  in  other  land,  not 
previously  existing,  and  not  referred  to  in  the  con- 
veyance. The  explanation  is,  apparently,  that  the 
easement  is  to  be  regarded,  for  the  purpose  of  the  par- 
ticular case,  as  included  in  the  description  of  the  land 
conveyed.  Evidence  is  always  admissible  to  aid  in  the 
interpretation  of  the  language  of  a  written  instrument, 
and  so  evidence  is  admissible  to  show  the  surrounding 
circumstances  to  be  such  as  to  raise  a  presumption  that 
the  property  conveyed  was,  not  a  mere  piece  of  land,  but 
a  piece  of  land  with  a  particular  easement  appurtenant 
thereto.^*  The  rules  declared  by  the  courts  as  to  the 
creation  of  easements  corresponding  to  preexisting 
quasi  easements,  and  of  easements  of  necessity,  con- 
stitute in  reality  merely  rules  of  construction  for  the  pur- 
pose of  determining  the  scope  of  the  conveyance.  And 
the  grant  of  the  easement  is  implied  only  in  the  sense 
that  the  easement  passes  by  the  conveyance  although  not 
expressly  mentioned,  just  as  an  easement  previously  cre- 
ated passes  upon  a  conveyance  of  the  land  to  which  it 
is    appurtenant    without    any    express    mention    of    the 

84.     As    said   by   Justice   Story,  privilege  at  the  time  of  the  grant, 

somewhat  too  sweepingly:  "What-  passes  as  parcel  of  it."     Hazard 

ever  is  actually  enjoyed  w^ith  the  v.  Robinson,  3  Mason,  272. 
thing    granted,    as    a    beneficial 


1272  Eeal  Property.  [§  363 

easement.  It  is  immaterial,  from  a  legal  point  of 
view,  whether  the  easement  passes  because  the  instru- 
ment expressly  says  that  it  shall  pass,  or  because  the 
circumstances  are  such  as  to  call  for  a  construction 
of  the  language  used  as  so  saying.  So  in  the  case  of 
the  so  called  implied  reservation  of  an  easement  upon  a 
conveyance  of  land,  the  description  of  the  land  is,  by 
reason  of  the  surrounding  circumstances,  construed  to 
refer,  not  to  the  land  free  from  any  easement,  but  to  the 
land  subject  to  an  easement  corresponding  to  the 
previous  mode  of  utilizing  the  land  or  to  the  necessities 
of  the  case,  and  there  is  thus,  properly  speaking,  an 
express  reserv^ation,  in  the  sense  that  it  is  intended,  or 
rather  presumed  to  be  intended,  and  the  reservation  is 
implied  only  in  the  sense  that,  instead  of  being  explicitly 
stated,  it  is  left  to  be  inferred  from  the  language  used 
when  construed  with  reference  to  the  surrounding  cir- 
cumstances. 

(b)  Of  easement  corresponding  to  pre-existent 


quasi  easement.  One  cannot  have  an  easement  over 
one's  own  land,  but  one  may  make  use  of  one  part  of 
his  land  for  the  benefit  of  another  part,  just  as,  if  they 
were  separately  owmed,  the  owner  of  the  latter  might 
make  use  of  the  former  by  reason  of  the  existence  of 
an  easement  in  his  favor.  When  one  thus  utilizes  part 
of  his  land  for  the  benefit  of  another  part,  it  is  frequent- 
ly said  that  a  quasi  easement  exists,  the  part  of  the  land 
which  is  benefitted  being  referred  to  as  the  ''quasi  dom- 
inant tenement,"  and  the  part  which  is  utilized  for  the 
benefit  of  the  other  part  being  referred  to  as  the  ^' quasi 
servient  tenement."  The  so  called  qtmsi  easement  is 
evidently  not  a  legal  relation  in  any  sense,  but  the 
expression  is  a  convenient  one  to  describe  the  particular 
mode  in  which  the  owner  utilizes  one  part  of  the  land  for 
the  benefit  of  the  other,  as  bearing  on  the  question  now 
to  be  discussed,  whether,  when  the  two  parts  subse- 
quently become  the  property  of  different  persons,  an 
actual  easement  is  to  be   regarded   as   existing,   which 


^  a63] 


Easements.  1273 


corresponds  to  the  use  wliich  was  previously  made  of 
the  land  by  the  owner  of  both  parts.  The  latter  ques- 
tion is  frequently,  perhaps  more  usually,  the  subject  of 
discussion  and  adjudication  without  the  employment  of 
the  expression  quasi  easement,  which  is  here  employed 
merely  because,  in  the  view  of  the  writer,  the  explana- 
tion and  discussion  of  the  matter  will  be  thereby 
somewhat  facilitated. 

If  the  owner  of  land,  one  part  of  which  is  sub- 
ject to  a  quasi  easement  in  favor  of  another  part, 
conveys  the  quasi  dominant  tenement,  an  easement  cor- 
responding to  such  quasi  easement  is  ordinarily  re- 
garded as  thereby  vested  in  the  grantee  of  the  land,  pro- 
vided, it  is  said,  the  quasi  easement  is  of  an  apparent 
continuous    and    necessary    character. 

It  is  perhaps  unfortunate  that  the  courts,  in  de- 
termining whether,  in  a  particular  case,  an  easement 
corresponding  to  a  preexisting  quasi  easement  has 
passed  with  the  land,  have  usually  failed  to  recognize 
that  the  question  is  primarily  one  of  construction,  and 
have  instead  undertaken  to  lay  down  absolute  rules  as  to 
what  characteristics  the  particular  easement  or  quasi 
easement  must  have,  implying  that,  if  it  has  these  char- 
acteristics, the  easement  will  pass  as  a  matter  of  law. 
The  characteristics  ordinarily  referred  to  in  tliis  con- 
nection are,  as  above  indicated,  that  the  user  be  ap- 
parent, that  it  be  continous,  and  that  it  be  necessary, 
each  of  which  will  be  hereaftei-  discussed  in  turn.  But 
it  does  not  seem  that  the  presence  or  absence  of  any  or 
all  of  these  characteristics  should  be  conclusive.  Taking 
the  case  of  a  quasi  easement  which  is  not  apparent, 
which  is  not  continuous  and  which  is  not  necessary, 
nevertheless  a  conveyance  in  terms  of  the  quasi  domi- 
nant tenement  should,  it  is  conceived,  be  construed  as 
a  conveyance  of  the  lands  with  an  easement  appurtenant 
thereto  corresponding  to  the  pre  existing  quasi  ease- 
ment, if  this  accords  with  the  probable  intention  of  the 
parties.    On  the  other  liand,  even  though  the  quasi  ease- 


1274  Eeal  Property.  [§  363 

ment  has  all  the  three  characteristics  named,  an  ease- 
ment corresj)oncling  thereto  evidently  does  not  pass 
with  the  land  if  the  language  of  the  conveyance  shows 
clearly  an  intention  otherwise,^^  or  if  the  circumstances 
are  such  as  to  exclude  a  construction  of  the  language 
of  the  conveyance  as  inclusive  of  the  easement.  So  it 
has  been  decided  that  an  easement  does  not  pass  when 
the  grantee  of  the  land  knows  that  the  grantor  has  no 
intention  that  it  shall  pass.^*^ 

Applications  of  doctrine.     The  doctrine  of  an 

implied  grant  of  an  easement  corresponding  to  a  pre- 
existing quasi  easement  has  been  applied  in  various 
connections,  of  which  the  following  may  be  mentioned. 
It  has  been  held  that  where  the  owner  of  two  pieces 
of  land  maintains  on  one  of  them  a  drain  for  the  bene- 
fit of  the  other,  a  person  to  whom  he  conveys  the  latter 
is  entitled  to  an  easement  of  maintaining  the  drain 
as  it  was  before  maintained.^'  And  so  if  one  lays  pipes 
for  the  supply  of  water  from  one  part  of  his  land  to 

85.  Webber  v.  Vogel,  159  Pa.  tale  of  property  under  order  of 
235,  28  Atl.  226;  Hardy  v.  Mc-  court  there  was  no  implication 
Cullough,  23  Gratt.  (Va.)  251;  of  the  grant  of  an  easement  if 
Bloom  V.   Koch,  63   N.   J.   Eq.   10,  the  evident  intention  of  the  court 

50  Atl.    621    (dictum)  ;     Greer    v.       was   otherwise. 

Van  Meter,   54  N.   J.   Eq.   270,  33  87.     Thayer   v.    Payne,   2   Gush. 

Atl.  798   Ulictinn);    United  States  Mass.  327;   Lampman  v.  Milks,  21 

V.   Appleton,   1   Sumn.   492.  N.  Y.  505;    Denton  v.  Leddell,  23 

86.  Birmingham,  Dudley  &  Dis-  N.  J.  Eq.  64;  Shaw  v.  Etheridge, 
trict  Banking  Co.  v.  Ross,  L.  R.  3  Jones  L.  (48  N.  C«ir.)  300; 
38  Ch.  Div.  295;  McPherson  v.  Siiarpe  v.  Scheible,  162  Pa.  341, 
Acker,  McArth.  &  M.  150,  48  Am.  42  Am.  St.  Rep.  838,  29  Atl.  736; 
Rep.  749;  Curtis  v.  Ayrault,  47  Elliott  v.  Rhett,  5  Rich.  L.  (S.  C.) 
N.  Y.  473;  Lebus  v.  Boston,  21  40S,  57  Am.  Dec.  750;  Sarnderlin 
Ky.  X.aw  Rep.  411,  47  L.  R.  A.  79,  v.    Baxter,    76    Va.    299;    McElroy 

51  S.  W.  609;  Kemp  v.  Pennsyl-  v.  McLeay,  71  Vt.  396,  45  Atl. 
vania  R.  R.,  156  Pa.  430,  26  Atl.  898.  But  see  Allers  v.  Bach,  130 
1074.  Md.  499,   100  Atl.  781,  where  the 

In  Assets  Investment  Co.  v.  implied  grant  of  an  easement  of 
HoUingshead,  C.  C.  A.  200  Fed.  drainage  was  negatived,  apparent- 
551,  it  was  decided  that  upon  a      ly  as  not  being  necessary. 


§  363] 


Easements. 


1275 


another  part,  a  grantee  of  the  part  so  benefitted  may 
have  the  privilege  of  obtaining  a  water  supply  in 
the  same  manner  as  it  was  previously  obtained  by  his 
grantor.^^  The  doctrine  has  also  been  applied  in  connec- 
tion with  the  question  of  the  right  to  utilize  water 
power,^'^  to  flood  land,*^®  to  demand  support  for  a 
building  from  another  building,^ ^  or  from  a  wall,^-  to 


88.  Nicholas  v.  Chamberlain, 
Cro.  Jac.  121;  Watts  v.  Kelson, 
L.  R.  6  Ch.  166;  Franciscioni  v. 
Soledad  Land  &  Water  Co.,  170 
Cal.  221,  149  Pac.  161;  Quinlan 
V.  Noble,  75  Cal.  250,  17  Pac.  69; 
Adams  v.  Gordon,  265  111.  87,  106 
X.  E.  517;  Johnson  v.  Knapp,  146 
Mass.  70,  15  N.  E.  134;  Toothe 
V.  Bryce.  50  N.  J.  Eq.  589,  25  Atl. 
iS2;Larsen  v.  Peterson,  53  N.  J. 
Eq.  88,  30  Atl.  1094;  Paine  v. 
Chandler,  134  N.  Y.  385,  19  L.  R. 
A.  99,  32  N.  E.  18;  Spencer  v. 
Kilmer,  151  N.  Y.  390,  45  N.  E. 
865;  Coolidge  v  Hager,  43  Vt.  9, 
5  Am.  Rep.  256. 

In  Nicholas  v.  Chamberlain. 
Cro.  Jac.  121,  there  is  a  dictum  by 
Popham,  C.  J.,  that  no  such  ease- 
ment to  have  the  water  pass  to 
one's  land  is  created  if  the  pipes 
were  laid  by  a  lessee  of  the  grant- 
or or  by  a  disseisor,  and  they 
were  not  in  any  way  adopted  by 
the  grantor  as  a  part  of  the 
premises  before  making  the  con- 
veyance. This  dictum  was  ap- 
plied in  Cogswell  v.  Cogswell, 
81  Wash.  315,  142  Pac.  655. 

89.  Jarvis  v.  Seele  Mill  Co., 
173  111.  192,  64  Am.  St.  Rep.  107, 
50  N.  E.  1044;  Smith  v.  Dressel- 
house,  152  Mich.  451,  116  N.  W. 
387;  Richardson  v.  Bigelow,  15 
Gray    (Mass.)     154;    Simmons    v. 


Cloonan,   81  N.   Y.    557. 

90.  Preble  v.  Reed,  17  Me.  169; 
Baker  v.  McGuire,  53  Ga.  245,  57 
Ga.  109;  Burr  v.  Mills,  21  Wend. 
(N.  Y.)  290;  Znamanacek  v. 
Jelinek,  69  Neb.  110,  111  Am.  St. 
Rep.  533,  95  N.  W.  28;  Latta  v. 
Catawba  Electric  &  Power  Co., 
146  N.  Car.  285,  59  S.  E.  1028. 

91.  Jordan  v.  Otis,  38  Ms.  429; 
Tunstall  v.  Christian.  80  Va.  1. 
56  Am.  Rep.  581;  Richards  v. 
Rose,  9  Exch.  217.  But  see  Grif- 
fiths V.  Morrison,  106  N.  Y.  165, 
12  N.  E.  580;  Whyte  v.  Builders' 
League,  164  N.  Y.  429,  58  N.  E. 
517. 

92.  Kahn  v.  Cherry,  131  Ark. 
49,  198  S.  W.  266;  Nippert  v. 
Warneke,  128  Cal.  501.  61  Pac.  96, 
270;  Goldschmid  v.  Starring,  5 
Mackey  (D.  C.)  582;  Ringgold 
Lodge  V.  De  Kalb  Lodge,  157  Ky. 
203,  16  S.  W.  1111;  Carlton  v. 
Blake,  152  Mass.  176,  23  Am.  St. 
Rep.  818,  25  N.  E.  83;  Cherry  v. 
Brizzolura,  89  Ark.  309,  116  S. 
W.  668;  Partridge  v.  Gilbert,  15 
N.  Y.  601,  69  Am.  Dec.  632;  Eno 
V.  Del  Vecchio,  4  Duer.  (N.  Y. 
— )  53,  6  Duer.  17;  Henry  v. 
Koch,  80  Ky.  391,  44  Am.  Rep. 
484;  Doyle  v.  Ritter,  6  Phila.  577; 
Schwalm  v.  Beardsley,  106  Va. 
407,  56  S.  E.  135. 


1276 


Eeal  Property. 


[§  363 


utilize  a  stairway  on  adjoining  property ,^-^  and  to  liave 
a  building  encroach  on  another's  land,^^  and  even  to 
have  water  in  an  adjoining  pond  kept  at  a  fixed  level.®*^ 

Easement  of  light.    In  England  and  one  or  two 


states,  it  is  the  ordinary  rule  that,  if  one  conveys  land 
on  which  there  is  a  building  which  is  lighted  by  windows 
opening  on  land  retained  by  the  grantor,  the  grantee  is 
entitled  to  an  easement  of  light  over  such  land,  and  the 
grantor  cannot  obstruct  his  light  by  building  on  his 
land.^"^  Generally,  in  this  country,  however,  it  has  been 
held  that  no  such  grant  of  an  easement  of  light  will  be 
implied,  it  being  calculated  unduly  to  burden  land,  and 
to  interfere  with  its  alienation  and  proper  improve- 
ment;^*' or  that  it  will  be  implied  only  in  case  the  light 


93.  Stephens  v.  Boyd,  157  Iowa, 
570,  138  N.  W.  389;  National  Ex- 
change Bank  v.  Cunningham,  46 
Ohio  St.  575,  22  N.  E.  924;  HoweU 
V.  Estes,  71  Tex.  690,  12  S.  W. 
62;     Geible  v.  Smith,  146  Pa.  276, 

28  Am.   St.  Rep.  796,  23  Atl.  437. 

94.  Lead  City  Miner's  Union  v. 
Moyer,  235  Fed.  376;  Wilson  v. 
Riggs,  27  App.  D.  C.  550;  John 
Hancock  Mut.  Life  Ins.  Co.  v. 
Patterson,  103  Ind.  582,  53  Am. 
Rep.  550,  2  N.  E.  188;  Smith  v. 
Lockwood,  100  Minn.  221,  110  N. 
W.  980;  Carrig  v.  Mechanics' 
Bank,  136  Iowa,  261,  111  N.  W. 
329;  Katz  v.  Kaiser,  154  N.  Y. 
294,  48  N.  E.  532;  Grace  M.  E. 
Church  V.  Dobbins,  153  Pa.  294, 
34  Am.  St.  Rep.  706,  25  Atl.  1120. 

94a.  Marshall  Ice  Co.  v.  La 
Plant,  136  Iowa,  621,  12  L.  R.  A. 
(N.   S.)    1073,   111   N.  W.    1016. 

95.  Swansborough  v.  Coventry, 
9  Bing.  305;  Broomfield  v.  Wil- 
liams (1897),  1  Ch.  602;  Greer 
V.   Van   Meter,    54   N.   J.    Eq.   270, 


33  Atl.  794;  Sutphen  v.  Therkel- 
son,  38  N.  J.  Eq.  318;  Fowler  v. 
Wick.  74  N.  J.  Eq.  603,  70  Atl. 
682;  Liedtke  v.  Lipman,  (N.  J. 
Ch.)  76  Atl.  463;  Janes  v.  Jenk- 
ins, 34  Md.  1,  6  Am.  Rep.  300. 
See  Wood  v.  Grayson,  22  Dist. 
Col.  App.  432. 

96.  Kenn3dy  v.  Burnap,  120 
Cal.  488,  40  L.  R.  A.  476,  52  Pac. 
843;  Keating  v.  Springer,  146  111. 
481,  22  L.  R.  A.  544,  37  Am.  St. 
Rep.  175,  34  N.  E.  805;  Anderson 
V.  Bloomheart,  101  Kan.  691,  168 
Pac.  900,  901;  Ray  v.  Sweeney,  14 
Bush  (Ky.)  1,  29  Am.  Rep.  388; 
Keiper  v.  Klein,  51  Ind.  316;  Keats 
V.  Hugo,  115  Mass.  204,  15  Am. 
Rep.  80;  Mullen  v.  Strieker,  19 
Ohio  St.  135,  2  Am.  Rep.  379; 
Bailey  v.  Gray,  53  S.  C.  503,  31 
S.  E.  354;  Roe  v.  Walsh,  76 
Wash.  148,  135  Pac.  1031,  136  Pac. 
1146.  See  Morrison  v.  Marquardt, 
24  Iowa,  35,  92  Am.  Dec.  444; 
White  V.  Bradley,  66  Me.  254 


§  363]  Easements.  1277 

entering  the  grantee's  building  over  the  grantor's  land 
is  actually  necessaiy  to  the  use  of  such  building.'*^ 

The  same  rule  as  that  ordinarily  applied  in  con- 
nection with  a  conveyance  in  fee  simple  has  also  been 
asserted  in  connection  \\dth  a  lease,  it  being  held  that 
the  lessor,  or  one  claiming  under  him,  may  erect  a 
building  on  land  adjoining  the  premises  leased,  al- 
though he  thereby  obstructs  the  passage  of  light  to  the 
latter  premises.''^  Some  courts  have,  however,  indi- 
cated a  disposition  to  protect  a  tenant  under  a  lease  to 
a  greater  extent  in  this  regard  than  a  grantee  in  fee 
simple,  having  in  view  perhaps  that  the  burden  on  the 
adjoining  land  will  endure  only  for  the  life  of  the  lease, 
and  that  the  tenant  is  not  in  a  position  to  change  the 
construction  of  the  building  in  order  to  procure  light 
otherwise.  Thus  it  has  in  one  state  been  decided  that 
the  lease  of  a  room ' '  with  appurtenances ' '  passes  an  ease- 
ment in  the  yard  attached  to  the  building,  for  the  pro- 
curement of  light  and  air,*^^^  and  in  another  that  one 
who  leases  front  rooms  in  his  building  cannot  construct 
an  addition  to  the  building  on  an  unenclosed  space  in 
front  thereof  so  as  to  cut  off  the  light  and  air  from  the 

97.  Robinson  v.  Clapp,  65  Palmer  v.  Wetmore.  4  N.  Y.  Super. 
Conn.  365,  29  L.  R.  A.  582,  32  Ct.  (2  Sandf.)  316;  Myers  v.  Gem- 
Atl.  939;  Turner  v.  Thompson,  mel,  10  Barb,  (N.  Y.)  537;  Lindsey 
58  Ga.  268,  24  Am.  Rep.  497;  Dar-  v.  First  Nat.  Bank,  115  N.  C.  553, 
r.ell  V.  Columbus  Show  Case  Co.,  20  S.  E.  621. 

129  Ga.  62,  12  L.  R.  A.  (N.  S.)  333,  98a.     Doyle   v.    Lord,    64    N.    Y. 

58  S.  E.  631;    Case  v.  Minot,  158  432,  21  Am.  Rep.  629.     The  opin- 

Mass.  577,  22  L.  R.  A.  536,  33  N.  ion    is    apparently    to    the    effect 

E.    700;     Lipsky    v.     Heller,    199  that   if  "appurtenances"   had   not 

Mass.  310,  85  N.   E.  453;    Renny-  been     mentioned,     no     easement 

son's   Appeal,   94   Pa.   St.    147,   39  would    have    passed,    but    it    also 

Am.  Rep.  577;   Powell  v.  Sims,  5  distinguishes    the    cases    deciding 

W.  Va.  1,  13  Am.  Rep.  629.  that  no  easement  of  light  is  cre- 

98.  Keating  v.  Springer,  146  ated  by  implication  on  the  ground 
111.  481,  34  N.  E.  805,  22  L.  R.  A.  that  in  this  particular  case  the 
544,  37  Am.  St.  Rep.  175  (in  this  yard  had  been  appropriated  to 
case,  however,  there  was  an  ex-  the  use  of  the  building  and  was 
press  covenant  on   the   subject) ;  a  part  of  the  same  lot. 

2  R,  P.— G 


1278  Reu\l  Peoperty.  [§  363 

rooms  and  cover  the  lessee's  signs.^^**  A  like  view  has 
been  asserted  as  to  the  obstruction  of  the  light  passing 
to  that  part  of  the  building-  which  is  leased,  by  reason  of 
an  alteration  of  the  building  itself,  it  having  been  de- 
cided that  the  lessor,  or  one  standing  in  his  place,  can- 
not alter  the  building  so  as  to  prevent  light  and  air 
from  passing  through  a  ''well"  as  it  did  at  the  time  of 
the  lease.'^^''  And  it  has  likewise  been  decided  that  the 
tenant  of  an  upper  floor  cannot  obstruct  the  passage  of 
light  to  a  lower  floor  through  a  grating'' ^'^  or  skylight.^ ^'^ 
In  the  various  cases  referred  to,  the  light  in  question 
was  presumably  necessary'  for  any  proper  enjoyment 
of  the  premises,  and  they  may  perhaps  be  regarded  as 
coming  within  the  exception  to  the  general  rule,  some- 
times asserted,^^^  that  a  grant  of  a  right  to  light  will 
be  implied  so  far  as  it  is  absolutely  necessary.''**^ 

User  must   be    apparent.      That    an   easement 

may  thus  be  created  because  corresponding  to  a  pre- 
existing quasi  easement,  the  quasi  easement,  that  is, 
the  user  of  one  tenement  for  the  benefit  of  the  other  by 
their  common  owner,  must,  it  is  said,  have  been  appar- 
ent,''^'^  and  it  was  apparent,  it  has  been  stated,  if  its 

98b.     Brande      v.      Grace,      154  easement  in  such  light  and  air  as 

Mass.  210,  31  N.  E.  633.  was  "essential  to  the  beneficial  en- 

98c.     Case  v.   Minot,    158   Mass.  joyment  of  the  leased  tenement." 

577,    22    L.    R.    A.    536,    33    N.    E.  which    he    could    assert    against 

700.  one   subsequently   taking   a   lease 

88d.     Spies   v.   Damm,   54   How.  of  adjoining  land  from  the  same 

Pr.    (N.  Y.)    293.  lessor.     And  in   Stevens  v.   Salo- 

98e.     O'Neill  v.  Breese.  3  Misc.  mon,  39  Misc.  159,  79  N.  Y.  Supp. 

219.  23  N.  Y.  Supp.  526.  See  136,  that  the  lessor  could  not 
Morgan  v.  Smith.  5  Hun    (N.  Y.)  cut    off    light    "essential    to    the 

220.  beneficial  use." 

9Sf.     Ante,   §   this   section,   note  98h.     Whiting    v.     Gaylord.     66 

97.  Conn.  337,  50  Am.  St.  Rep.  87,  34 

98g.     In    Darnell    v.    Columbus  Atl.   85;        Hyde   Park   Thompson 

Show  Case  Co.,  129  Ga.  62,  58  S.  Houston  Light  Co.  v.  Brown,  172 

E.   631,   13  L.  R.  A.  N.  S.   333,  it  111.  329,  50  N.  E.  327;    Powers  v. 

was  held  that  the  lessee  had  an  Heffernan,   233   111.   597,   84  N.   E. 


§  363] 


Easements. 


1279 


existence  was  indicated  by  signs  which  must  necessarily 
have  been  seen,  or  which  might  be  seen  or  known  on  a 
careful  inspection  by  a  person  ordinarily  conversant 
with  the  subject.'^''  Accordingly,  the  question  whether 
the  user  of  land  for  a  drain  or  aqueduct  which  is  under 
ground  or  covered  by  buildings  is  apparent  for  the 
purpose  of  the  rule  depends,  it  seems,  on  whether 
there  is  any  object  in  sight  from  the  land  purchased, 
as  being  thereon  or  near  thereto,  such  as  a  pump  or  a 
sink,  which  indicate  the  presence  of  the  aqueduct 
or  drain. ^ 

The  user  of  land  for  purposes  of  {passage  is  appar- 
ent, it  seems,  so  as  to  give  to  the  transferee  of  the  quasi 
dominant  tenement  a  right  of  way  over  the  land  re- 
tained, if  there  is  a  well  marked  road  or  path,  either 
constructed  for  the   purpose,^   or  as   a   result   of   con- 


l>61;  Fetters  v.  Humphreys,  18  N. 
J.  Eq.  260,  19  N.  J.  Eq.  471;  Lamp- 
man  V.  Milks,  21  N.  Y.  505;  Butter- 
worth  V.  Crawford.  46  N.  Y.  349, 
7  Am.  Rep.  352;  Phillips  v.  Phil- 
lips, 48  Pa.  St.  178,  86  Am.  Dec. 
577;  Providence  Tool  Co.  v.  Cor- 
liss Steam  Engine  Co.,  9  R.  I. 
564;  Sanderlin  v.  Baxter,  76  Va 
299,   44  Am.   Rep.   165. 

99.  Gale,  Easements  (8th  Ed.) 
116;  Pyer  v.  Carter,  1  Hurlst.  & 
N.  916.  See  to  this  effect,  Ingalls 
V.  Plamondon,  75  111.  118;  Taylor 
V.  Wright,  76  N.  J.  Eq.  121,  79 
Atl.  433;  Butterworth  v.  Craw- 
ford, 46  N.  Y.  349,  7  Am.  Rep. 
352;  Rollo  v.  Nelson,  34  Utah, 
116,  26  L.  R.  A.  (N.  S.)  315,  96 
Pac.  263. 

In  Brown  v.  Dickey,  106  Me. 
97,  75  Atl.  382,  it  is  said  that  the 
easement  must  be  "indicated  by 
objects  which  are  necessarily 
seen  or  would  be  ordinarly  ob- 
servable by  persons  familiar  with 


the  premises." 

1.  For  cases  in  which  a  quasi 
easement  involving  the  use  of 
land  for  a  drain  or  aqueduct 
was  'held  to  be  apparent,  see 
Pyer  v.  Carter,  l  Hurlst.  &  N. 
916;  Schwann  v.  Cotton  (1916), 
2  Ch.  120;  McPherson  v.  Acker, 
:MacArthur  &  M.  (D.  C.)  150,  48 
Am.  Rep.  749;  Tooth  v.  Bryce. 
50  N.  J.  Eq.  589,  25  Atl.  182; 
Larsen  v.  Peterson,  53  N.  J.  Eq. 
88,  30  Atl.  1094;  Miller  v.  Skaggs, 
79  W.  Va.  645,  Ann.  Cas.  1918D, 
929,  91  S.  E.  536.  For  cases  in 
which  it  was  held  not  to  be  ap- 
parent, see  Robinson  v.  Hillman, 
36  Dist.  Col.  App.  241;  Carbrey 
V.  Willis,  7  Allen  (Mass.)  364, 
83  Am.  Dec.  688;  Covell  v.  Bright, 
157  Mich.  419,  122  N.  W.  101; 
Butterworth  v.  Crawford,  46  N. 
Y.  349,  7  Am.  Rep.  352;  Scott  v. 
Beutel,  23  Gratt.   (Va.)   1. 

2.  Robinson  v.  Hillman,  36 
Dist.  Col.  App.   241;    Teachout  v. 


1280  Real  Property.  [§  363 

stant  or  prolonged  user.^  There  are  however  ocasional 
judicial  expressions  to  the  effect  that  a  way  is  never 
to  be  regarded  as  apparent  for  this  purpose.'^* 

The  requirement  that  the  user  of  the  land  have 
been  apparent  is  perhaps  based  on  the  consideration 
that  if  the  user  was  not  apparent,  the  one  to  whom  the 
quasi  dominant  tenement  is  conveyed  cannot  be  pre- 
sumed to  have  had  any  knowledge  thereof,  or  to  have  an- 
ticipated that  he  would  enjoy  a  like  right  of  user.  But 
this  consideration  appears  to  be  of  uniform  impor- 
tance only  on  the  assumption  that  every  conveyance  is 
a  bilateral  transaction,  that,  in  other  words,  it  is  effec- 
tive because  representing  an  agreement  between  the 
parties.  A  conveyance  is,  no  doubt,  in  the  ordinary 
case,  the  result  of  a  prior  agi^eement,  and  the  require- 
ment of  the  ''acceptance"  of  a  conveyance,  so  fre- 
quently asserted  in  this  country,"^**  involves  the  idea  that 
the  conveyance,  to  be  effective,  must  also  be  agreed  to 
by  the  grantee  after  its  execution.  Nevertheless  a  con- 
veyance may  well  be  made  which  is  not  the  result  of 
agreement,  and  which  is  valid  in  spite  of  the  inability  of 
the  grantee  to  accept.  Suppose  a  conveyance  of 
the  quasi  dominant  tenement  is  made  by  wav  of  gift 
to  a  child  one  year  old.  Why  should  the  fact  that  the 
user  of  the  quasi  servient  tenement  is  apparent  or  not 
apparent   affect   the   question   whether   the   conveyance 

Duffus,  141  Iowa,  466,  119  N    W.  N.    J.   Eq.    471;    Michelet   v.   Cole, 

983;  Keokuk  Electric  Ry.  &  Power  20  N.  Mex.  357,  149  Pac.  310.     In 

Co.    V.    Weisman,    146    Iowa,    679.  Duvall    v.    Ridout,    124    Md.    193, 

126    N.   W.    60;    Hankins   v.    Hen-  L.   R.   A.   1915C,   345,  92   Atl.    209. 

Hendricks,  247   111.  517,   93  N.  E.  it  is  said  that  there  is  no  implied 

428;    Scott  v.  Moore,   98  Va.   66S.  grant  of  a  way,  though  well  de- 

71    Am.    St.    Rep.    749,    37    S.    E.  fined,  unless  it  is  enclosed  or  im- 

342;  Hammond  v.  Ryman,  120  Va.  proved,  or  is   actually  necessary. 

131,  90,   S.   E.   613.  And  Allers  v.  Beach,  130  Md.  499, 

3.     Stone  v.  Burkhead,  160  Ky.  100    Atl.    781,    is    adverse    to    the 

47,  169  S.  W.  489  (semble) ;  Liquid  "implied"  grant  of  a  right  of  w.ay 

Carbonic  Co.  v.  Wallace,  219  Pa.  in  any  case,  if  not  a  way  of  neces- 

457,  68  Atl.  1021.  sity. 

3a.     Fetters  v.  Humphreys,  19         3b.    Post,   §   463. 


§  363] 


Easements. 


1281 


creates  an  easement  in  favor  of  the  infant?  And  the 
same  difficulty  suggests  itself  in  connection  with  a  devise 
of  the  quasi  dominant  tenement,'*  in  which  case  the 
devisee  may  be  ordinarily  supposed  to  be  ignorant  of 
the  devise  until  after  the  testator's  death.  If  the 
testator  has  habitually  made  use  of  one  part  of  his  land 
for  the  benefit  of  another,  why  should  not  a  devise  of 
this  latter  part  be  presumed  to  be  intended  to  include 
the  right  of  user  to  the  same  extent  when  the  user  is 
not  apparent  as  wlien  it  is  apparent?  And  even  in  the 
case  of  a  conveyance  of  the  quasi  dominant  tenement 
by  way  of  sale,  the  fact  that  the  user  is  not  apparent 
might  well  be  disregarded  if  the  grantee  knows  other- 
wise of  such  user  by  the  grantor.^ 

User  must  be   continuous.     In   order  that   an 

easement  may  thus  be  created  as  corresponding  to  a  pre 
existing  quasi  easement,  the  previous  user  must  also, 
it  is  ordinarily  stated,  have  been  continuous."     In  some 


4.  Post,  note  30. 

5.  The  statement  that  the  user 
must  be  apparent,  like  the  state- 
ment that  it  must  be  continuous 
a;ppears  to  have  originated  in 
Gale  and  Whatley  on  Easements, 
published  in  1839,  these  authors 
adopting  the  expressions  "appar- 
ent" and  "continuous"  from  the 
French  Civil  Code.  See  Lord 
Blackburn's  remarks  in  L.  R.  o 
App.  Cas.  at  p.  821.  There  were 
quite  a  number  of  cases  prior  to 
the  date  named,  an  3  indeed  sub- 
sequent thereto,  in  which  the  doc- 
trine of  the  grant  of  an  easement 
as  corresponding  to  a  pre-exist- 
ing quasi  easement  was  recog- 
nized, but  in  which  there  was  no 
suggestion  of  any  necessity  that 
the  prior  user  have  been  appar- 
ent or  continuous.  See  cases  re- 
ferred   to,    Gale,    Easements    (8th 


Ed.)  117  et  seq.  The  requirement 
of  the  French  Code  in  this  re- 
spect appears  to  have  been  based 
upon  certain  of  the  customary 
laws,  and  upon  the  decisions  of 
the  courts,  of  old  France.  See  the 
references  in  a  suggestive  note 
in  65  University  of  Penna.  Law 
Rev.  at  p.  77.  In  Brissaud,  French 
Private  Law  (Continental  Legal 
History  Series)  p.  424,  it  is  said 
that  in  the  old  law  the  doctrine 
of  implied  grant  based  on  pre- 
vious usage,  ordinarily  referred  to 
as  "destination  du  pere  de  famine'' 
seems  to  have  applied  only  to 
visible  servitudes,  but  that  there 
is  not  a  very  clear  distinction 
made  between  their  being  visible 
and    being   continuous. 

6.  Worthington  v.  Gimson,  2 
El.  &  El.  618;  Wheeldon  v.  Bor- 
rows, 12  Ch.   Div.   31;    Walker  v. 


1282 


Real  Peoperty. 


[§  36^ 


cases  the  view  is  taken  that  the  user  is  continuous  if 
no  further  act  of  man  is  necessary  to  its  continuous 
exercise,"  while  in  other  cases  the  question  is  said  to 
be  whether  there  is  a  permanent  adaptation  of  the 
tw^o  tenements  to  the  exercise  of  the  user.^  Givins:  the 
former  signification  to  the  expression,  it  is  difficult  to 
see  any  propriety  in  the  requirement  of.  continuousness. 
Giving  the  latter  signification  thereto,  the  requirement 
appears  to  be,  not  that  the  user  be  continuous,  but  that 
there  be  such  an  adaption  of  the  two  tenements  for  the 
purpose  of  such  user  as  to  indicate  an  intention  that 
the  user  shall  be  permanent  or  approximately  perma- 
nent, and  there  are  cases  in  which  this  view  is  ex- 
pressed.^ 


Clifford,  128  Ala.  67,  86  Am.  St. 
Rep.  74,  29  So.  588;  Whiting  v. 
Gaylord,  66  Conn.  337,  50  Am.  St. 
Rep.  87,  34  Atl.  85;  Powers  v. 
Heffernan,  233  111.  597,  84  N.  E. 
661;  Larsen  v.  Peterson,  53  N.  J. 
Eq.  88,  30  Atl.  1094;  Lampman 
Milks,  21  N.  Y.  505;  Longendyke 
V.  Anderson,  101  N.  Y.  625,  4  N. 
E.  625;  Sanderlin  v.  Baxter,  76 
Va.  299,  44  Am.  Rep.  165. 

7.  Bonelli  v.  Blakemore,  66 
Miss.  136,  14  Am.  St.  Rep.  550. 
5  So.  228;  Providence  Tool  Co.  v, 
Corliss  Steam  Engine  Co.,  9  R.  I. 
564;  Morgan  v.  Meuth,  60  Mich. 
238,  27  N.  W.  509.  This  is  the 
meaning  given  to  the  expression 
by  the  French  law.  Code  Napoleon 
Art.  688.  See  editorial  note,  65 
University    Penna.    Law    Rev.    77. 

8.  Toothe  v.  Bryce,  50  N.  J. 
Eq.  589,  25  Atl.  182;  Larsen  v. 
Peterson,  53  N.  J.  Eq.  88.  30  Atl. 
1094;  John  Hancock  Mut.  Life 
Ins.  Co.  V.  Patterson,  103  Ind.  582, 
53  Am.  Rep.  550,  2  N.  E.  188; 
Paine  v.  Chandler.  134  N.  Y.  385, 


19  L.  R.  A.  99,  32  N.  E.  18; 
Spencer  v.  Kilmer,  151  N.  Y.  390, 
45  N.  E.  865. 

9.  John  Hancock  Mut.  Life 
Ins.  Co.  V.  Patterson,  103  Ind 
582,  53  Am.  Rep.  550,  2  N.  E 
188;  Starrett  v.  Baudler,  —  Iowa. 
— ,  165  N.  W.  216;  Carmon  v. 
Dick,  170  N.  C.  305,  87  S.  E. 
224;  Baker  v.  Rice,  56  Ohio  St. 
463,  47  N.  E.  653;  German  Sav- 
ings &  Loan  Society  v.  Gordon. 
54  Ore.  147,  26  L.  R.  A.  (N.  S.) 
331.,  102  Plac.  736;  -Phillips  v. 
Phillips.  48  Pa.  St.  178,  86  Am. 
Dec.  577;  Scott  v.  Moore,  98  Va. 
668,  81  Am.  St.  Rep.  749,  37  S.  E. 
342    (semble). 

In  occasional  New  Jersey  deci- 
sions continuous  and  apparent 
appear  to  be  regarded  as  con- 
vertible terms.  Fetters  v.  Humph- 
reys, 18  N.  J.  Eq.  260;  Taylor  v. 
Wright,  76  N.  J.  Eq.  121,  79  Atl. 
433.  And  see  as  to  the  lack  of 
distinction  in  this  regard,  in  the 
old  French  law,  oiite,  this  sec- 
tion note  5,  ad  fin. 


§  363] 


Easements. 


1283 


The  maintenance  of  a  drain  or  aqueduct  has  been 
regarded  as  involving  a  continuous  user/''  while,  on 
the  other  hand,  the  going  on  land  to  obtain  water  has 
been  regarded  as  not  continuous.^ ^ 

Whether  the  user  of  land  for  purposes  of  passage 
is  continuous  within  the  meaning  of  this  asserted  re- 
quirement is  a  matter  on  which  there  has  been  con- 
siderable difference  of  opinion,  and  while  some  cases 
seem  to  regard  is  as  necessarily  discontinuous,  because 
not  constantly  exercised,^-  other  cases  regard  it  as 
continuous  if  there  is  a  clearly-defined  road  over  the 
servient  tenement,  evidently  intended  for  the  use  of 
the  dominant  tenement.'^ 


10.  Larsen  v.  Peterson,  53  N. 
J  Eq.  88,  30  Atl.  1094;  Paine  v. 
Chandler.  134  N.  Y.  385.  19  L.  R. 
A.  99.  32  X.  E.  18;  Sanderlin  v. 
Baxter,  76  Va.  299;  Hoffman  v. 
Shoemaker,  69  W.  Va.  233,  34  L. 
R.  A.  (X.  S.)  632,  71  S.  E.  198; 
Dodd  V.  Burchell.  1  Hurlst.  &  Colt 
113;  Schwann  v.  Cotton  (1916),  2 
Ch.  120. 

11.  Polden  V.  Bastard.  L.  R.  1 
Q.  B.  156;  O'Rorke  v.  Smith,  11 
R.  I.  259,  23  Am.  Rep.  440.  Con- 
tra. Eliason  v.  Grove,  85  Md.  215, 
36  Atl.  844,  in  which  case,  how- 
ever, there  was  a  continuous 
adaptation  of  the  premises,  in 
the  shape  of  a  gate  near  the 
v.ell. 

12.  Worthington  v.  Gimson,  Z 
El.  &  El.  618;  Brett  v.  Clowser, 
5  C.  P.  Div.  376;  Oliver  v.  Hook, 
47  Md.  301;  Bentley  v.  Mills,  174 
Mass.  469,  54  N.  E.  885  (semble)  : 
Morgan  v.  Meuth.  60  Mich.  238,  27 
N.  W.  509;  Bonelli  v.  Blakemore, 
66  Miss.  136,  14  Am.  St.  Rep.  550, 
5  So.  228;  Fetters  v.  Humphreys, 
18  N.  J.  Eq.  260,  19  X.  J.  Eq.  471: 


Kelly  v.  Dunning,  43  X.  J.  Eq. 
62,  10  Atl.  276;  Parsons  v.  John- 
son. 68  X.  Y.  62,  23  Am.  Rep. 
149;  Carmon  v.  Dick,  170  N.  C. 
305,  87  S.  E.  224;  Providence  Tool 
Co.  v.  Corliss  Steam  Engine  Co., 
9  R.  I.  504:  O'Rorke  v.  Smith,  11 
R.  I.  259;  Standiford  v.  Goudy. 
6  W.  Va.  364. 

13.  Brown  v.  Alabaster,  37  Ch. 
Div.  490;  Thomas  v.  Owen,  20  Q. 
B.  Div.  225;  Watts  v.  Kelson,  6 
Ch.  App.  166;  Ellis  v.  Bassett, 
128  Ind.  118,  25  Am.  St.  Rep.  421, 
27  N.  E.  344;  Stone  v.  Burkhead, 
160  Ky.  47,  169  S.  W.  489;  Elia- 
son V.  Grove,  85  Md.  215,  36  Atl. 
844;  Gorton  Pew  Fisheries  Co. 
V.  Tolman,  210  Mass.  412,  97  N. 
E.  54;  Phillips  v.  Phillips,  48  Pa. 
St.  178,  86  Am.  Dec.  577;  Zell  v. 
Universalist  Society,  119  Pa.  St. 
390,  4  Am.  St.  Rep.  654,  13  Atl. 
447;  Com.  v.  Burford,  225  Pa. 
93,  73  Atl.  1064;  Hammond  v. 
Ryman,  120  Va.  131,  90  S.  E.  613; 
And  see  Martin  v.  Murphy,  221 
111.  632,  77  N.  E.  1126;  Feitler  v. 
Dobbins,    263    111.    78,    104    X.    E 


1284  Eeal  Property.  [§  363 

Occasionally  it  lias  been  said  to  be  of  primary  im- 
portance that  the  user,  or  the  mode  of  exercising  the 
user,  have  been  in  its  nature  permanent  or  approxi- 
mately permanent/^  and  certainly  the  mere  fact  that 
the  grantor  is,  at  the  time  of  the  conveyance,  making 
a  temporary  use  of  the  land  retained  for  the  benefit  of 
of  the  land  conveyed,  without  any  permanent  adaptation 
of  the  land  to  the  exercise  of  the  user,  is  not  calculated  to 
induce  the  belief  that  the  parties  intend  that  the 
grantee  shall  be  entitled  to  continue  or  repeat  such 
user.  Suppose  for  instance  the  grantor  is  piling  on 
the  land  retained  hay  taken  from  the  land  conveyed, 
such  temporary  user  of  the  land  retained  for  the  bene- 
fit of  the  land  conveyed  is  an  insufficient  basis  on 
which  to  support  a  construction  of  the  conveyance  as 
including  a  right  in  subsequent  years  so  to  pile  the  hay 
from  the  land  conveyed.  It  is  in  this  sense  only,  as 
involving  a  requirement  of  permanency  in  the  mode 
of  user  that,  as  above  indicated,  the  requirement  of  con- 
tinuousness  seems  to  be  appropriate  in  this  connection. 

User  must  be  necessary.     In  this  countr^^  the 


cases  usually  say  that  an  easement  is  not  thus  created 
in  favor  of  the  transferee  of  land,  as  corresponding  to 
a  preexisting  qiiasi  easement,  unless  the  easement,  or 
the  particular  user  involved  therein,  is  "necessary," 
qualifying  this  expression,  however,  by  other  words 
indicating  that  this  requirement  of  necessity  means 
little  if  any  more  than  highly  desirable. ^^  Thus  it  has 
been  said  that  the  easement  must  be  necessary  to  the 

1088.  Stephens  v.  Boyd,  157  Iowa,  570, 

It    has   been   said   that   the   re-  138  N.  W.   389.     And  cases   cited 

quirement  of  continuousness  does  (nite^  this  subsection,  note  9. 

not  apply  to  the  case  of  a  way.  15.     The  English   cases  do   not 

Hoffman  v.  Shoemaker,  69  W.  Va.  ordinarily  refer  to  such  a  require- 

233,  34  L.  R.  A.  (N.  S.)  632,  71  S.  ment,    but    occasionally    they    do 

E.  198.  so.     Wheeldon  v.  Burrows,  12  Ch. 

14.     See  Liquid  Carbonic  Co.  v.  Div.  31;  Suffield  v.  Brown,  9  Jur. 

Wallace,  219  Pa.  457,  68  Atl.  1021;  (N.    S.)    1001;    Watts    v.    Kelson, 


§  363] 


Easements. 


1285 


proper  enjoyment  of  the  land,^*^  or  to  its  reasonable/^ 
or  convenient, ^^  or  beneficial^*'  enjoyment,  or  "reason- 
ably necessary"  to  its  enjoyment  or  use,-°  or  to  its 
convenient  nse,^^  or  "clearly  necessary  to  its  beneficial 
use.  "22 


6  Ch.  App.   166;    Ewart  v.  Coch- 
rane, 4  Macq.  117. 

16.  Evans  v.  Dana,  7  R.  I.  306; 
Whiting  V.  Gaylord,  66  Conn.  337. 
50  Am.  St.  Rep.  87,  34  Atl.  85. 

17.  Spencer  v.  Kilmer,  151  N. 
Y.  390,  45  N.  E.  865;  Cave  v. 
Crafts,  53  Cal.  135;  Robinson  v. 
Clapp,  65  Conn.  365,  29  L.  R.  A. 
582,  32  Atl.  939;  Eliason  v.  Grove, 
85  Md.  215,  36  Atl.  844;  Powers 
v.  Heffernan,  233  111.  597,  84  N. 
E.  661. 

18.  Kane  v.  Templin,  158 
Iowa,  24  138  N.  W.  901;  Hankins 
v.  Hendricks,  247  111.  517,  93  N. 
E.  428  (highly  convenient  and 
beneficial) ;  Phillips  v.  Phillips, 
48  Pa.  St.  178,  86  Am.  Dec.  577; 
McElroy  v.  McLeay,  71  Vt.  396. 

19.  Case  v.  Minot,  158  Mass. 
577,  22  L.  R.  A.  536,  33  N.  E. 
700;  Sandford  v.  Boss.  76  N.  H. 
476,  84  Atl.  936;  Carmon  v.  Dick, 
170  N.  C.   305,   87   S.  E.  224. 

20.  Gaynor  v.  Bauer,  144  Ala. 
448,  3  L.  R.  A.  (N.  S.)  1082,  39 
So.  749;  Wilson  v.  Riggs,  27  App. 
Cas.  (D.  C.)  550;  Robinson  v. 
Hillman,  36  App.  Cas.  (D.  C.) 
241;  John  Hancock  Mut.  Life  Ins. 
Co.  V.  Patterson,  103  Ind.  582.  53 
Am.  Rep.  550,  2  N.  E.  188; 
Teachout  v.  Duffus,  141  Iowa,  466, 
119  N.  W.  983;  Irvine  v.  Mc- 
Creary,  108  Ky.  495,  22  Ky.  L. 
Rep.  169,  49  L.  R.  A.  417,  56  S. 
W.  966;  Dolliff  v.  Boston  &  M. 
R.  Co.,  68  Me.  173  (clearly  neces- 
sary    to    beneficial     enjoyment) ; 


Dinneen  v.  Corporation  for  Relief 
of  Widows  &  Children  of  the 
Clergy  of  Protestant  Episcopal 
Church  of  the  Diocese  of  Mary- 
land, 114  Md.  589,  79  Atl.  1021; 
Johnson  v.  Knapp,  146  Mass.  70, 
15  N.  E.  134,  150  Mass.  267,  23  N. 
E.  40 ;  Bussmeyer  v.  Jablonsky, 
241  Mo.  681,  39  L.  R.  A.  (N.  S.) 
549,  Ann.  Cas.  1913C,  1104.  145  S. 
W.  772;  Sanford  v.  Boss,  76  N. 
H.  476,  84  Atl.  936  (to  beneficial 
enjoyment) ;  Taylor  v.  Wright,  76 
N.  J.  Eq.  121,  79  Atl.  433  (ditto) ; 
Fowler  v.  Wick,  74  N.  J.  Eq.  603, 
70  Atl.  682;  Paine  v.  Chandler, 
134  N.  Y.  385,  19  L.  R.  A.  99,  32 
N.  E.  18;  Baker  v.  Rice,  56  Ohio 
St.  463,  47  N.  E.  653;  Rightsell 
V.  Hale,  90  Tenn.  556,  18  S.  W. 
245;  Rollo  v.  Nelson,  34  Utah, 
116,  26  L.  R.  A.  (N.  S.)  315,  96 
Fac.  263  (for  use  and  convenient 
enjoyment) ;  Goodal  v.  Godfrey, 
53  Vt.  219,  38  Am.  Rep.  671;  San- 
derlin  v.  Baxter,  76  Va.  299,  44 
Am.  Rep.  165;  Hammond  v.  Ry- 
man,  120  Va.  131,  90  S.  E.  613 
(reasonably  essential  to  its  use); 
Miller  v.  Skaggs,  79  W.  Va.  645, 
Ann.  Cas.  1918D,  929,  91  S.  E. 
536. 

21.  New  Ipswich  W.  L.  Fac- 
tory v.  Batchelder,  3  N.  H.  190; 
John  Hancock  Mut.  Life  Ins.  Co. 
V.  Patterson,  103  Ind.  582,  53  Am. 
Rep.  550,  2  N.  E.  188  (reasonably 
necessary  to  fair  enjoyment). 

22.  Stevens  v.  Orr,  69  Me.  323. 


1286 


Real  Property. 


[§ 


It  is  impossible  to  deduce  from  the  cases  any  general 
rule  by  which  to  determine  the  existence  of  this  "neces- 
sity," so  called,  and  such  a  rule  is,  perhaps,  in  the  na- 
ture of  things,  impossible  of  formulation.  That  the 
necessity  need  not  be  absolute,  in  the  sense  that  there 
can  be  no  enjoyment  whatsoever  of  the  land  without 
the  exercise  of  the  easement,  is  apparent  from  all  the 
decisions.-^  In  a  few  states  it  has  been  said  that  the 
question  of  necessity  is  determined  by  the  consideration 
whether  a  substitute  for  the  easement  can  be  procured 
by  ''reasonable"  trouble  and  expense.^^ 


23.  See  McPherson  v.  Acker, 
MacArthur  &  M.  (D.  C.)  150.  48 
Am.  Rep.  749;  Cihak  v.  Klekr,  117 
111.  643,  7  N.  E.  Ill;  John  Han- 
cock Mut.  Life  Ins.  Co.  v.  Pat- 
terson, 103  Ind.  582,  53  Am.  Rep. 
f50,  2  N.  E.  188;  Dolliff  v.  Boston 
&  M.  R.  Co.,  68  Me.  173;  Gorton 
Pew  Fisheries  Co.  v.  Tolman,  210 
Mass.  412,  97  N.  E.  54;  Bonelli 
\.  Blakemore,  66  Miss.  136,  14 
Am.  Si.  Rsp.  550,  5  So.  228;  Kelly 
V.  Duncomb,  43  N.  J.  Eq.  62,  10 
Atl.  276;  Lampman  v.  Milks,  21 
N.  Y.  505;  Paine  v.  Chandler,  134 
N.  Y.  385,  19  L.  R.  A.  99,  32  N.  E. 
18;  Spencer  v.  Kilmer,  151  N.  Y. 
390,  45  N.  E.  865;  Phillips  v. 
Phillips,  48  Pa.  St.  178,  86  Am. 
Dec.  577;  Providence  Tool  Co.  v. 
Corliss  Steam  Engine  Co.,  9  R. 
I.  564;  Goodall  v.  Godfrey,  53  Vt. 
219,   38   Am.    Rep.    671. 

It  has  been  said,  in  two  states, 
that  the  grant  of  an  easement 
will  be  implied  in  cases  of  "strict 
necessity"  only.  Warren  v.  Blake, 
54  Me.  276;  Stillwell  v.  Foster,  80 
Me.  333,  14  Atl.  731;  Buss  v.  Dyer, 
125   Mass.   287.     And   see   Malsch 


V.  Waggoner,  62  Wash.  470.  114 
Pac.  446;  Roe  v.  Walsh,  76  Wash. 
148,  136  Pac.  1146,  135  Pac.  1031. 
But  in  view  of  other  decisions 
in  these  states  it  is  evident  that 
it  is  not  meant  by  this  that  the 
easement  must  be  necessary  for 
the  purpose  of  any  enjoyment 
whatsoever  of  the  land.  See 
cases  previously  cited  in  this 
note,  and  Stevens  v.  Orr,  69  Me. 
233;  Johnson  v.  Knapp,  146  Mass. 
70,  15  N.  E.  134;  Case  v.  Minot, 
158  Mass.  577,  22  L.  R.  A.  536,  33 
N.  E.  700.  Occasionally  it  has 
been  said  to  be  sufficient  that 
the  easement  be  highly  convenient 
and  beneficial.  See  Adams  v. 
Gordon,  265  111.  87,  106  N.  E. 
517. 

24.  Warren  v.  Blake,  54  Me. 
276;  Dolliff  v.  Boston  &  M.  R. 
Co.,  68  Me.  173;  Johnson  v.  Jor- 
dan, 2  Mete.  (Mass.)  234;  Thayer 
V.  Payne,  2  Cush.  (Mass.)  327; 
Carbrey  v.  Willis,  7  Allen  (Mass.) 
364,  83  Am.  Del.  688;  Randall  v. 
M'Laughlin,  10  Allen  (Mass.)  366; 
Smith  V.  Blanpied,  62  N.  H.  652; 
Scott  V.  Beutel,  23  Graft.  (Va.)  1, 


§  363]  Easements.  1287 

The  fact  tbat  the  easement  is  necessary  for  the  pur- 
pose of  a  full  enjoyment  of  the  land  conveyed  is  no  doubt 
a  consideration  tending  to  show  that  the  grantee  of 
the  land  expects  to  have  such  an  easement,  correspond- 
ing to  the  preexisting  quasi  easement,  as  appurtenant  to 
the  land  conveyed,  and  that  the  grantor  expects  him  to 
have  it.  In  other  words  the  great  desirability  of  the 
easement  is  a  consideration,  of  greater  or  less  weight, 
in  favor  of  the  assumption  that  the  conveyance  of  the 
land  is  intended  to  be,  not  of  the  land  alone, 
but  of  the  land  with  the  easement  appurtenant 
thereto.  Conversely,  the  fact  that  the  easement  is 
not  highly  desirable  for  the  enjoyment  of  the  land 
conveyed  is  a  consideration  adverse  to  the  view  that 
the  grantor  intends  the  grantee  to  acquire,  or  that 
the  grantee  expects  to  acquire,  such  easement.  The 
courts  tend  in  terms  to  base  this  requirement  of  neces- 
sity, so  called,  upon  the  impolicy  of  imphdng  a  grant 
in  excess  of  the  express  words  of  the  conveyance,  and 
the  desirability  of  making  such  implication  only  in  case 
of  necessity,  but  the  meaning  of  this  appears  to  be 
merely  that  the  language  of  the  conveyance  is  not  to 
be  extended  by  construction  so  as  to  include  an  case- 
ment not  expressly  referred  to,  and  not  before  existing, 
unless  this  easement  is  so  desirable  for  the  full  enjoy- 
ment of  the  land  conveyed  that  a  conveyance  of  the  land 
without  the  easement  is  unlikely  to  have  been  within 
the  contemplation  of  the  parties. 

Actuality   of   user.      Tlie  mere   fact   that    the 

land  retained  is  capable  of  user  in  a  particular  way 
for  the  benefit  of  the  land  conveyed  is  obviously  in  itself 
no  reason  for  regarding  an  easement  of  that  character 
as  passing  by  the  conveyancCj^**  and  tlie  fact  that  such 

25.     See  the  excellent  opinion  of  26.     Haverhill     Sav.     Bank     v. 

Dodge,  J.,  in  Miller  v.  Hoeschler.  Griffen,    184   Mass.    419,    68   N.    E. 

126  Wis.  263,  8  L.  R.   A.    (N.  S.)  839;   Latta  v.  Catawba  Elec.  Co., 

£27,   10.5   N.  W.   790.  146     N.    C.     285,    59     S.    E.     1028; 


1288 


Eeal  Property. 


r§  363 


user  has  taken  place  in  the  past,  during  the  common  own- 
ership of  the  two  properties,  is  immaterial  if  it  was 
abandoned  before  the  conveyance  was  made.^"  That 
there  has  been  a  temporary  cessation  of  the  user  at  that 
time  is  not  however,  it  seems,  conclusive  against  the 
construction  of  the  conveyance  as  passing  the  land 
with  the  easement  as  appurtenant  thereto.^^ 

Character   of   conveyance.     An   easement   has 

been  regarded  as  thus  passing  because  corresponding 
to  a  preexisting  quasi  easement,  not  only  when  the 
grantor  retains  the  land  which  is  sought  to  be  subjected 
to  the  easement,  but  also  when  he  disposes  of  this  latter 
land  by  a  contemporaneous  conveyance.^**  And  it  has 
been  regarded  as  so  passing  upon  a  devise  of  land  as 
well  as  of  a  conveyance,^^  and  upon  a  lease  as  well  as 
upon  a  conveyance  in  fee  simple. ^^  Likewise  a  mortgage 


«  Brown  v.  Dickey,  106  Me.  97,  75 
Atl.  382;  Belser  v.  Moore,  73  Ark. 
296,  84  S.  W.  219. 

27.  Gorton  Pew  Fisheries  Co. 
V.  Tolman,  210  Mass.  412,  97  N. 
E.  54;  Bauer  &  Co.  v.  Chamber- 
lain, 159  Iowa,  12,  138  N.  W.  903; 
Van  Rossum  v.  Grand  Rapids 
Brewing  Co.,  129  Mich.  530,  89 
N.  W.  370;  McHart  v.  McMiiUin. 
30  Can.  Sup.  Ct.  245. 

28.  Elliott  V.  Rhett,  5  Rich.  L. 
(S.  C.)  405,  57  Am.  Dec.  750; 
Simmons  v.  Cloonan,  81  N.  Y. 
557. 

29.  Allen  v.  Taylor,  16  Ch.  D. 
355;  Phillips  v.  Low  (1892),  1  Ch. 
47;  Henry  v.  Koch,  80  Ky.  391, 
44  Am.  Rep.  484;  Stephens  v. 
Boyd,  157  Iowa,  570,  138  N.  W. 
S89;  Larsen  v.  Peterson,  53  N.  J. 
Eq.  88,  30  Atl.  1094;  Baker  v. 
Rice,  56  Ohio  St.  463,  47  N.  E. 
653;    Cannon  v.  Boyd,   73   Pa.  St. 


179.  Compare  Whyte  v.  Build- 
ers' League  of  New  York,  164  N. 
Y.  429,  58  N.  E.  517.  As  in  the 
case  of  conveyances  made  by  sev- 
eral cotenants  for  purposes  of 
partition.  O'Daniel  v.  Baxter,  112 
Ky.  334,  65  S.  W.  805;  Robinson 
V.  Hillman,  36  App.  Cas.  (D.  C.) 
241;  Johnson  v.  Gould,  60  W.  Va. 
84,  53  S.  E.  798;  Clark  v.  De- 
baugh,  67  Md.  430,  10  Atl.   241. 

30.  Jones  v.  Sanders,  138  Cal. 
405;  Cheda  v.  Bodkin,  173  Cal. 
7,  158  Pac.  1025;  Stephens  v. 
Boyd,  157  Iowa,  570,  138  N.  W. 
389;  Gorton  Pew  Fisheries  Co. 
V.  Tolman,  210  Mass.  402,  38  L 
R.  A.  (N.  S.)  882,  97  N.  E.  54; 
iViuse  V.  Gish,  114  Va.  90,  75  S. 
K.  764;  Pearson  v.  Spencer,  3  B. 
&  S.  761;  Phillips  v.  Low,  L. 
R  (1892)  1  Ch.  47;  Schwann  v. 
Cotton  (1916)  2  Ch.  120. 

31.  See   Snow   v.   Pulitzer    142 


^  363] 


Easements. 


1289 


of  the  quasi  dominant  tenement  may  have  a  similar  op- 
eration in  this  regard,  the  purchaser  at  a  foreclosure 
sale  thereof  thus  acquiring  an  easement  corresponding 
to  the  quasi  easement  existing  at  the  time  of  the  mort- 
gage.^- And  the  same  doctrine  has  been  applied  in  favor 
of  one  acquiring  title  to  the  quasi  dominant  tenement  by 
a  judicial  sale,^^  or  a  sale  under  execution,^^  and  a 
conveyance  in  accordance  therewith,  and  also  in  favor 
of  one  acquiring  title  from  commissioners  or  other 
officials  appointed  to  make  partition.^^ 

Ownership  of  servient  tenement.     Since  a  per- 


son  cannot   create   an   easement   in   another's   land,    a 


N.  Y.  263,  36  N.  E.  1059;  Thropp 
V.  Field,  26  N.  J.  Eq.  (11  C.  E. 
Green)  82;  Miller  v.  Fitzgerald 
Dry  Goods  Co.,  62  Neb.  270,  Si5 
N.  W.  1078;  Comm.  v.  Burford,  225 
Pa.  52,  73  Atl.  1064;  and  other 
citations  in.  1  Tiffany,  Landlord 
&  Ten.  §  128. 

32.  Pendola  v.  Ramm,  138  Cal. 
517,  71  Pac.  624;  John  Hancock 
Mut.  Life  Ins.  Co.  v.  Patterson, 
103  Ind.  582,  53  Am.  Rep.  550,  2 
N.  E.  188;  Carrig  v.  Mechanics 
Bank,  136  Iowa,  261,  111  N.  W. 
329;  Havens  v.  Klein,  51  How. 
Pr.  (N.  Y.)  82;  Pennsylvania  R. 
Co.  V.  Jones,  50  Pa.  St.  417. 

In  Harlow  v.  Wlhitcher,  136 
Mass.  553,  it  was  held  that  the 
fact  that  the  mortgagee  of  land 
released  a  part  thereof  from  tae 
mortgage  did  not  impose  an  eas:- 
ment  on  the  other  part,  as 
against  the  mortgagee,  corre- 
sponding to  a  user  then  made  by 
the  mortgagor  of  the  other  part 
for  the  benefit  of  the  part  re- 
leased. 

In  Cannon  v.  Boyd,  73  Pa.  St. 
179,  it   was  held,  ai)parently,  that 


an  easement  passed  to  a  pur- 
chaser at  a  sale  under  the  mort- 
gage although  the  quasi  ease- 
ment did  not  exist  until  after  the 
making  of  the  mortgage. 

33.  Zell  V.  Universalist  Society, 
119  Pa.  St.  390,  4  Am.  St.  Rep. 
654,  13  Atl.  447;  Manbeck  v.  Jones, 
190  Pa.  St.  171,  42  Atl.  536. 

34.  Kieffer  v.  Imh.off,  26  Pa. 
St.  438;  Building  Association  v. 
Getty,  11   Phila.   305. 

35.  Kilgour  v.  Ascham,  5  Har. 
&  J.  (Md.)  82;  Muir  v.  Cox,  110 
Ky.  560,  62  S.  W.  73;  Ellis  v. 
Bassett,  128  Ind.  118,  25  Am.  St. 
Rep.  421,  27  N.  E.  344;  Brakely 
V.  Sharp,  9  N.  J.  Eq.  9,  10  Id. 
206;  Goodall  v.  Godfrey,  53  Vt. 
219,  38  Am.  Rep.  671;  Burwell 
v.  Hobson,  12  Gratt.  (Va.)  322, 
65  Am.  Dec.  247;  Powell  v.  Riley, 
15  Lea  (Tenn.)  153;  Gentry  v. 
Piercy,  175  Ky.  174,  193  S.  W. 
1017. 

It  has  been  applied  in  con- 
nection with  the  assignment  of 
dower.  Morrison  v.  King,  62  II!. 
30.  Compare  Smilh  v.  Smith,  62 
N.   li.   652. 


1290  Real  Property.  [§  363 

conveyance  of  land  for  the  benefit  of  which  other  land, 
not  belonging  to  the  grantor,  is  used  without  right  or 
merely  under  a  license,  does  not  have  the  effect  of 
vesting  in  the  grantee  an  easement  corresponding  to 
such  prior  use/^*'  There  are  however  decisions  to  the 
eff'ect  that  if,  in  such  case,  the  grantor  subsequently  ac- 
quires the  other  land,  such  an  easement  will  then  arise 
in  favor  of  the  grantee  on  the  principle  of  estoppel. ^^ 
The  difficulty  with  this  view  would  seem  to  be  that 
there  is  nothing  on  which  to  base  an  estoppel.  The 
original  conveyance  did  not  in  terms  purport  to  create 
an  easement  in  favor  of  the  grantee,  and  the  user  of 
another's  land  at  the  time  does  not,  it  seems,  as  does 
the  user  of  his  ovni  land,  seem  a  sufficient  reason  for 
construing  it,  as  against  the  grantor,  as  an  attempted 
conveyance  of  the  land  with  an  easement  appurtenant 
thereto  in  such  other's  land."*^ 

Since  one  who  has  an  undivided  interest  in  particu- 
lar land  cannot  burden  such  land  with  an  easement,^^ 
tliere  can  be  no  implication  of  a  grant  as  corresponding 
to  a  preexisting  qtiasi  easement  if  there  is  an  out- 
standing undivided  interest  in  the  property  silbjected  to 
the  user.^*^ 

36.  Trump  v.  McDonnell.  120  Latta  v.  Catawba  Elec.  Co.,  146 
Ala.  200,  24  So.  353;  Green  v.  N.  C.  285,  59  S.  E.  1028;  .rarnigan 
Collins,  86  N.  Y.  246.  v.   Mairs,   1  Humph.    (Tenn.)    473. 

It    has    been    decided    that    the  38.     See  Spencer  v.  Kilmer,  151 

fact   that  the  owner  of  the  land  N.  Y.  390,  45  N.  E.  865. 

so  used  for  the  benefit  of  another's  39.     Ante,  §  361,  note  35. 

land  joins  in  a  conveyance  of  the  40.     Farley    v.    Howard,    60    X. 

latter,   being  the  husband   of  the  Y.  App.  Div.  173,  70  N.   Y.  Supp. 

owner  thereof,  does  not  impose  an  51,  172  X.  Y.  628,  65  N.  E.  IIIC; 

easement  on  his  land.     Farley  v.  Palmer  v.  Palmer,  150  N.  Y.  139, 

Howard,   60   N.   Y.  App.   Div.   193,  55    Am.    St.    Rep.    653,    44    N.    E. 

172   N.  Y.   Supp.   28.  966.      But    See    McElroy    v.    Mc- 

37.  Swedish-American  Nat.  Leay,  71  Vt.  396,  45  Atl.  898,  to 
Bank  of  Minneapolis  v.  Connec-  the  effect  that  in  such  case  the 
ticut  Mut.  Life  Ins.  Co.,  83  Minn.  grantee  would  have  a  right  to 
377,    86    N.    W.    420;    McElroy    v.  call  for  partition. 

McLeay,  71  Vt.   396,   45  Atl.   898; 


§  363] 


Easements. 


1291 


Conveyance  with  ** appurtenances."  The  de- 
cisions are  ordinarily  to  the  effect  that  the  fact  that 
a  conveyance  of  the  quasi  dominant  tenement  is  ex- 
pressed to  be  "with  the  appurtenances"  or  with 
certain  rights  '^appertaining  and  belonging"  or  that 
similar  general  terms  are  nsed,  does  not  in  itself  operate 
to  create  an  easement  in  the  grantee  equivalent  to 
the  pre-existing  quasi  easement.^ ^  According  to  the 
English  cases,  however,  a  conveyance  of  land  with  the 
easements  or  rights  "used  and  enjoyed  therewith" 
will  create  in  favor  of  the  grantee  an  easement  cor- 
responding to  a  quasi  easement  previously  existing  in 
favor  of  the  land  conveved.^- 


41.  Worthington  v.  Gimson,  2 
Ell.  &  El.  618;  Baring  v.  Abing- 
don (1892),  2  Ch.  374,  389;  May 
V  Smith,  3  Mackey  (D.  C.)  55; 
Kentucky  Distilleries  &  Ware- 
house Co.  V.  Warwick  Co.,  166 
Ky.  651,  179  S.  W.  611;  Stevens 
V.  Orr,  69  Me.  323;  Oliver  v.  Hook, 
47  Md.  301;  Duvall  v.  Ridout,  124 
Md.  193,  L.  R.  A.  1915C,  345,  92 
Atl.  209;  Grant  v.  Chase,  17 
Mass.  443,  9  Am.  Dec.  161;  Mor~ 
gt.n  V.  Meuth,  60  Mich.  238,  27  N. 
W.  509;  Bonelli  v.  Blakemore,  66 
Miss.  136,  14  Am.  St.  Rep.  550,  5 
So.  228;  Spaulding  v.  Abbott,  55 
N.  H.  423;  Stuyvesant  v.  Wood- 
ruff, 21  N.  J.  L.  133;  Georke  v. 
Wadsworth,  73  N.  J.  Eq.  448,  68 
Atl.  71;  Michelet  v.  Cole,  20  N. 
Mex.  357,  149  Pac.  310;  Parsonr, 
V.  Johnson,  68  N.  Y.  62,  23  Am. 
Rep.  149;  Morris  v.  Blunt,  49 
Utah,  243,  161  Pac.  1127;  Swazey 
V.  Brooks,  34  Vt.  451;  Standiford 
v.  Goudy,  6  W.  Va.  364. 

Occasionally,  however,  the  use 
of  the  word  "appurtenances"  has 
been    regarded     as     effective    for 


this  purpose.  Thomas  v.  Owen, 
20  Q.  B.  Div.  225;  Wood  v.  Gray- 
son, 22  App.  Cas.  (D.  C.)  432; 
Ihoma.s  v.  Wiggers,  41  111.  470; 
Doyle  V.  Lord,  64  N.  Y.  432,  21 
Am.  Rep.  659;  Elliott  v.  Bailee, 
14  Ohio  St.  10;  Miller  v.  Lapham, 
44  Vt.  416  (with  privileges) ; 
Tayter  v.  North,  30  Utah,  156,  6 
L.  R.  A.  (N.  S.)  410,  83  Pac.  762. 
See  Atkins  v.  Boardman,  2  Mete. 
(Mass.)   457,  37  Am.  Dec.  100. 

42.  Kay  v.  Oxley,  L.  R.  10  Q. 
B.  360;  Watts  v.  Kelson,  6  Ch. 
App.  166;  Barkshire  v.  Grubb,  18 
Ch.  Div.  616,  Bayley  v.  Great 
Western  Ry.  Co.,  26  Ch.  Div.  434. 
So,  where  the  owner  of  two  ad- 
joining tracts  has  used  one  (the 
fjudsi  servient  tenement)  for  the 
purpose  of  passing  to  the  other 
(the  quasi  dominant  tenement), 
while  ,a  conveyance  of  the  lat- 
ter tenement  "with  appurte- 
nances" will  not  pass  a  right  of 
way,  the  conveyance,  if  with  the 
rights  and  easements  "used  and 
enjoyed  therewith,"  will  have 
that  effect.     Formerly  it  was  held 


1292 


Eeal  Pkoeerty. 


[§  363 


Implied  reservation.     In  some  of  the  English 

cases,  and  likewise  in  some  decisions  in  this  country, 
it  was  held  that,  upon  the  transfer  of  the  quasi  servient 
tenement  by  the  owner,  there  was  an  implied  reservation 
of  an  easement  corresponding  to  the  quasi  easement 
l)efore  existing,  that  is,  the  same  doctrine  was  applied 
in  favor  of  the  grantor  of  the  land  as  in  favor  of  the 
grantee.^^  The  later  English  cases,  however,  are  to  the 
^effect  that  there  no  such  reservation  of  an  easement 
as  corresponding  to  a  preexisting  quasi  easement  is 
to  be  implied,  this  view  being  based  mainly  on  the 
theory  that  the  assertion  of  such  an  easement  by  the 
grantor  is  in  derogation  of  his  own  grant.^^  There  are 
likewise  in  several  states  decisions  or  dicta  somewhat 
adverse  to  the  recognition  of  any  such  easement  in 
favor  of  the  grantor  as  corresponding  to  a  preexisting 


that  this  principle  applied  only 
in  case  the  quasi  easement  had, 
at  a  former  time,  when  the  gw^tsi 
dorhinant  and  servient  tenements 
belonged  to  different  persons,  ex- 
isted as  an  actual  easement. 
Thomson  v.  Waterlow,  L.  R.  6 
Eq.  36;  Langley  v.  Hammond,  L. 
R.  3  Exch.  168.  This  distinction 
is,  however,  no  longer  recog- 
nized. 

43.  Pyer  v.  Carter,  1  Hurl.  & 
N.  916;  Thomas  v.  Owen,  L.  R. 
20  Q.  B.  D.  225;  Cheda  v.  Bodkin, 
173  Cal.  7,  158  Pac.  1025;  Cihak 
v.  Klekr,  117  111.  643,  7  N.  E.  Ill; 
I'owers  V.  Heffernan,  233  111.  597, 
16  L.  R.  A.  (N.  S.)  523,  122  Am. 
St.  Rep.  199,  84  N.  E.  661;  John 
Hancock  Mut.  Life  Ins.  Co.  v. 
Patterson,  103  Ind.  582,  53  Am. 
Rep.  550,  2  N.  E.  188;  Lebus  v. 
Boston,  21  Ky.  Rep.  411,  47  L.  R. 
A.  79,  51  S.  W.  609;  Irvine  v.  Mc- 
Creary,  108  Ky.  495,  49  L.  R.  A. 


417,  56  S.  W.  966;  Znamaneck  v. 
Jelinek,  69  Neb.  110,  11  Am.  St. 
Rep.  533,  95  N.  W.  28;  Dunklee 
V.  Wilton  R.  Co.,  24  N.  H.  489; 
Taylor  v.  Wright,  76  N.  J.  Eq. 
121,  79  Atl.  433;  Greer  v.  Van 
Meter,  54  N.  J.  Eq.  270,  33  Atl. 
794;  Carmon  v.  Dick,  170  N.  C. 
305,  87  S.  E.  224;  Seibert  v. 
Levan,  8  Pa.  St.  383,  49  Am.  Dec. 
525;  Geible  v.  Smith,  146  Pa.  St. 
276,  28  Am.  St.  Rep.  796,  23  Atl. 
437;  Grace  M.  E.  Church  v.  Dob- 
bins, 153  Pa.  St.  294,  34  Am.  St. 
Rep.  706,  25  Atl.  1120;  Rightsell 
V.  Hale,  90  Tenn.  556,  18  S.  W. 
245;  Harwood  v.  Benton,  32  Vt. 
724;  Bennett  v.  Booth,  70  W.  Va. 
264,  39  L.  R.  A.  (N.  S.)  618,  73 
S.  E.  909. 

44.  White  v.  Bass,  7  Hurl.  & 
N.  722;  Suffield  v.  Brown,  4  De 
Gex,  J.  &  S.  185;  Wheeldon  v. 
Burrows,  12  Ch.  Div.  31;  Ray  v. 
Hazeldene   (1904),  2   Ch.  17. 


•^  363] 


Easements. 


1293 


quasi  easement,  it  being  sometimes  stated  that  an  ease- 
ment will  be  implied  in  favor  of  the  grantor  only  when 
it  is  strictly  necessary^^  or  strictly  necessaiy  for  the  en- 
joyment of  the  land  retained/^  that  is,  when  it  can  be 
implied  as  an  easement  of  necessity.  In  some  the  fact 
that  the  conveyance  contains  a  warranty  or  covenant 
against  encumbrances  is  referred  to  as  one  considera- 
tion adverse  to  recogiiition  of  such  an  easement  in 
favor  of  the  grantor,  a  view  which  appears  to  he  open 
to  considerable  question,  the  purpose  of  a  covenant  in 
a  conveyance  not  being  to  determine  the  construction  of 
the  instrument  as  regards  the  rights  conveyed.'*^ 

The  distinction  asserted  in  the  later  English  cases 
between  the  implication  of  a  grant,  and  of  a  reservation, 


45.  €herry  v.  Brizzolara,  89 
Ark.  309,  21  L.  R.  A.  (N.  S.) 
508,  116  S.  W.  668;  Warren  v. 
Blake,  54  Me.  276;  Mitchell  v. 
Seipel,  53  Md.  251;  Carbrey  v. 
Willis,  7  Allen  (Mass.)  364,  S3 
Am.  Dec.  688;  Bass  v.  Dyer,  125 
Mass.  287;  O'Brien  v.  Murphy, 
189  Mass.  353,  75  N.  E.  700;  Brown 
V.  Fuller,  165  Mich.  162,  33  L. 
R.  A.  (N.  S.)  459,  Ann.  Cas.  1912C, 
853,  130  N.  W.  621;  Dabney  v. 
Child,  95  Miss.  585,  48  So.  897; 
Meredith  v.  Frank,  56  Ohio  St. 
479,  47  N.  E.  656;  Sellers  v.  Texas 
Cent.  Ry.  Co.,  81  Tex.  458,  13 
L.  R.  A.  657,  17  S.  W.  32;  Scott 
V.  Eeutel,  23  Gratt.  (Va.)  1;  (so 
that  substitute  cannot  be  pro- 
cured at  reasonable  expense); 
Shaver  v.  Edgell,  48  W.  Va.  502, 
37  S.  E.  664.  To  this  effect  is 
Attrill  V.  Piatt,  10  Can.  Sup.  Ct. 
425.  In  Crosland  v.  Rogers,  32 
S.  C.  130,  10  S.  E.  874,  it  is  said 
that  the  necessity  must  be  im- 
perious. 

46.  Walker  v.  Clifford,  128  Ala. 
2  R.  l>.—1 


67,  86  Am.  St.  Rep.  74,  29  So. 
588;  Wells  v.  Garbutt,  132  N.  Y. 
-1-30,  30  X.  E.  978.  In  Starrett  v. 
Baudler,  — ■  Iowa,  — ,  165  N.  W. 
216  it  is  said  that  there  must  be 
no  other  reasonable  mode  of  en- 
joying the  dominant  tenement 
without   the   easement. 

47.  Cherry  v.  Brizzolara,  89 
Ark.  309,  21  L.  R.  A.  (N.  S.)  508, 
116  S.  W.  668;  Carbrey  v.  Willis, 
7  Allen  (Mass.)  364,  83  Am.  Dee. 
088;  McSweeney  v.  Comm.  185 
Mass.  371,  70  N.  E.  429;  Brown 
V.  Fuller,  165  Mich.  162,  33  L.  R. 
A.  (N.  S.)  459,  Ann.  Cas.  1912C. 
853.  130  N.  W.  621;  Dabney  v. 
Child,  95  Miss.  585,  48  So.  897; 
Denman  v.  Mentz,  63  N.  J.  Eq. 
613,  52  Atl.  1117;  Howley  v.  Chaf- 
fee, 88  Vt.  468,  93  Atl.  120.  Th;it 
the  presence  of  such  a  oovenant 
in  the  conveyance  is  immaterial, 
see  Bennett  v.  Booth,  70  W.  Va. 
264,  39  L.  R.  A.  (N.  S.)  618.  73 
S.  E.  909;  Harwood  v.  Benton, 
32  Vt.  724. 


1294  Eeal,  Property.  [§  363 

of  an  easement  corresponding  to  a  preexisting  quasi 
easement,  has  been  decided  not  to  apply  in  connection 
with  what  have  been  termed  ''reciprocal"  easements, 
the  only  instance  of  which,  given  in  the  cases,  is  that  of 
the  support  of  buildings,  the  rule  in  regard  to  them 
l)eing  that,  when  buildings  are  erected  together  by  the 
same  owner  in  such  a  way  as  obviously  to  require 
mutual  support,  and  he  thereafter  conveys  one  of 
them,  the  grantee  is  regarded  as  impliedly  giving  the 
grantor  a  right  of  support  for  the  house  retained  by 
him  in  consideration  of  the  right  of  support  impliedly 
granted  for  the  house  sold.^^  Likewise,  in  this  country, 
it  appears  to  be  considered  that,  if  one  builds  houses 
separated  by  a  partition  wall,  and  the  houses  are  after- 
wards conveyed  to  different  persons,  with  the  division 
line  running  longitudinally  through  the  wall,  each  house 
is  ordinarily  entitled  to  an  easement  of  support  in 
the  part  of  the  wall  on  the  other's  land,  irrespective  of 
whether  it  was  conveyed  by  the  builder  before  or 
after  the  conveyance  of  the  other,  that  is,  upon  the 
severance  of  ownership  the  partition  wall  becomes  a 
party  wall.^^  It  may  be  questioned,  however,  whether 
the  easement  of  support  in  favor  of  the  grantor  in  such 
cases  might  not  rather  be  regarded  as  an  easement 
of  necessity. 

In  order  that  an  easement  maj^  thus  be  recognized 
in  favor  of  the  grantor,  by  way  of  implied  reservation, 
as  corresponding  to  a  preexisting  quasi  easement,  the 

48.  Richards  v.  Rose,  9  Exch.  App.  Cas.  (D.  C.)  427;  Ingalls 
218;  Suffield  v.  Brown,  4  De  G2X.  v.  Plamondon,  75  111.  118;  Everett 
J.  &  S.  185;  Wheeldon  v.  Bur-  v.  Edwards,  149  Mass.  588.  5  L. 
rows,  12  Ch.  Div.  31.  See  Steven-  R.  A.  110,  14  Am.  St.  Rep.  462. 
son  V.  Wallace,  27  Grat.  (Va.)  77;  22  N.  E.  52;  Carlton  v.  Blake,  152 
Tunstall  v.  Christian,  80  Va.  1,  Alass.  176,  23  Am.  St.  Rep.  818, 
56  Am.  Rep.  581;  Adams  v.  Mar-  25  N.  E.  83;  Partridge  v.  Gilbert, 
shall,  138  Mass.  228.  Compare  15  N.  Y.  601,  69  Am.  Dec.  632; 
Clemens  v.  Speed,  93  Ky.  284,  Rogers  v.  Sinsheimer,  50  X.  Y 
19  L.  R.  A.  240,  19  S.  W.  660.  646;   Heartt  v.  Kruger,  121  N.  Y. 

49.  Bartley    v.     Spaulding     n  386,   9   L.   R.   A.   135,   18   Am.    St. 


§  363]  Easements.  1295 

user  of  the  land  conveyed  for  the  benefit  of  that  retained 
must,  it  is  said,  be  apparent.^"  And  presumably  any 
other  requirement  that  may  in  the  particular  juris- 
diction be  regarded  as  essential  to  the  implication  of 
an  easement  in  favor  of  the  grantee  of  land,  such  as 
continuousness  and  necessity,  will  be  regarded  as  es- 
sential to  such  an  implication  in  favor  of  the  grantor. 

(c)    Of  easement  of  necessity.     An  easement 

of  necessity,  so  called,  is  an  easement  which  arises 
upon  a  conveyance  of  land,  in  favor  of  either  the 
grantor  or  grantee  of  the  land,  by  reason  of  a 
construction  placed  upon  the  language  of  the  convey- 
ance in  accordance  with  what  appears  to  be  the  neces- 
sity of  the  case,  in  order  that  the  land  conveyed,  or 
sometimes,  the  land  retained,  may  be  properly  avail- 
able for  use. 

The  purpose  for  which  a  conveyance  of  land  is 
made  may  call  for  a  construction  of  the  conveyance  as 
vesting  in  the  grantee  an  easement  as  appurtenant  to 
the  land,  such  an  easement  being  necessary  in  order 
that  the  land  may  be  used  as  intended.  Thus  one  who 
conveys  land  to  be  used  for  a  factory  has  been  regarded 
as  granting  such  an  easement,  as  regards  tlie  pollution 
of  air  or  water,  as  is  evidently  necessary  to  enable  the 
land  to  be  used  for  that  business,^ ^  and  if  he  conveys  it 

Rep.  829,  24  N.  E.  841;  Schaefer  96  Wash.  529,  165  Pac.  385. 
V.  Blumenthal,  169  N.  Y.  221,  62  50.  Biddison  v.  Aaron,  102  Md. 
N.  E.  175.  156,  62  Atl.  523;  Jobling  v.  Tut- 
But  see  Cherry  v.  Brizzolara,  89  tie,  75  Kan.  351,  9  L.  R.  A.  (N.  S.) 
Ark.  309,  21  L.  R.  A.  (N.  S.)  508,  960,  89  Pac.  699;  Scott  v.  Beutel, 
116  S.  W.  668,  to  the  effect  that  23  Gratt.  (Va.)  1;  Sellers  v.  Tex- 
this  is  so  only  if  another  wall  as  Cent.  Ry.  Co.,  81  Tex.  458,  13 
cannot  be  built  at  a  reasonable  L.  R.  A.  657,  17  S.  W.  32.  As  to 
expense.  And  as  perhaps  oppos-  this  requirement,  see  ante,  this 
ed  to  the  implication  of  an  ease-  subsection,  notes  1-5. 
ment  of  support  in  such  case  see  51.  Gale,  Easements  (8th  Ed.) 
Clemens  v.  Speed,  93  Ky.  284,  19  113,  note  f;  Goddard,  Easements, 
L.  R.  A.  240,  19  S.  W.  660;  Wil-  (6th  Ed.)  205;  Hall  v.  Lund,  1 
liamson    Inv.    Co.    v.    Williamson,  Hurl.  &  C.  676;  Huntington  &  K. 


1296  IIkai.  Property.  [§  363 

for  tlie  purpose  of  erecting  a  building,  he  may  well  be 
regarded  as  granting  such  rights  of  support  as  are 
necessary  for  the  building.^^  So,  if  one  conveys  land 
for  railroad  purposes,  the  conveyance  involves  in  effect 
a  grant  of  the  right  to  construct  and  operate  the  rail- 
road in  a  proper  manner,  even  in  derogation  of  the 
grantor's  natural  rights  as  regards  land  retained  by 
him,^^  and  such  an  easement  is  like\\ise  vested  in  the 
railroad  when  the  land  is  taken  under  condemnation 
proceedings,^^  If  one  conveys  'minerals  beneath  his 
land,  the  grantee  may  be  entitled,  on  the  same  theory  of 
necessity,  to  the  privilege  of  building  air  shafts  and 
water  storage  facilities,  of  erecting  machinery  in  or  on 
the  grantor's  land,  and  of  dumping  waste  thereon. ^^^ 
And  in  some  states,  while  an  easement  of  light  is  not 
recognized  merely  because  of  a  'preexisting  quasi  ease- 
ment of  light,  such  an  easement  will,  it  seems,  be 
recognized,  when  the  access  of  light  to  the  land  granted 
over  the  land  retained  can  be  regarded  as  actually 
necessary.^^^     Likewise    when    buildings    on    adjoining 

Land  Devel.  Co.  v.  Phoenix  Pow-  Ry.,  10  H.  L.  Cas.  333;    Manning 

der  Mfg.  Co.,  40  W.  Va.  711,  21  S.  v.  New  Jersey  Short  Line  R.  Co., 

E.  1037.  80   N.   J.   L.   349,   32   L.   R.  A.    (N. 

And    if    he    sells    and    conveys  S.)    155,  78  Atl.   200. 

land   adjoining   his    pond    for    an  54a.     Williams     v.     Gibson,     84 

ice  business  he  in  effect  grants  a  Ala.    228,   5   Am.   St.   Rep.   368,   4 

privilege  to  demand  that  the  pond  So.  350;   Gordon  v.  Park,  219  Mo. 

be    not    drained.      See    'Marshall  600,    117    S.    W.    1163;    Gordon   v. 

Ice  Co.  V.  LaPlant,  136  Iowa,  621,  Million,    248    Mo.    155,    154    S.   W. 

12  L.  R.  A.    (N.   S.)    1073,  111  N.  99;    Marvin   v.    Brewster    Co.,    55 

W.  1016.  X.    Y.    538;    Fowler   v.   Delaplain, 

52.  Caledonian  Ry.  Co.  v.  79  Ohio  St.  279,  21  L.  R.  A.  (N. 
Spr,ot,  2  Macq.  H.  L.  Cas.  453;  S.)  100,  87  N.  E.  260;  Turner  v. 
Rigby  V.  Bennett,  21  Ch.  Div.  559;  Reynolds,  23  Pa.  St.  199;  Potter 
Siddons  v.  Short,  2  C.  P.  Div.  572;  v.  Rend,  201  Pa.  318,  50  AtL  821; 
Freeholders  of  Hudson  County  v.  Dewey  v.  Great  Lakes  Coal  Co., 
Woodcliff  Land  Co.,  74  N.  J.  L.  236  Pa.  498,  84  Atl.  913;  Arm- 
355,  65  Atl.  844.  strong  v.   :Maryland   Coal   Co.,   67 

53.  See  Lewis,  Eminent  Do-  W.  Va.  589,  69  S.  E.  195;  Dand 
main,  §  474.  v.  Kingscote,  6  Mees.  &  W.  174. 

54.  Elliot        V       Northeastern  54b.     Ante,  §  363(a),  note  97. 


§  363 J  Easemknts.  1297 

lots  belonging  to  a  single  person  are  dependent  on  one 
another  for  support,  and  lie  conveys  one  of  the  lots, 
retaining  the  other,  it  may  be  considered  that  an  ease- 
ment of  support  *'By  necessity"  exists  in  each  lot  and 
building  in  favor  of  the  other  ;^^°  and  even  when  there 
is  a  building  upon  but  one  of  the  lots,  it  would  seem 
reasonable  to  recognize  an  easement  of  support,  by  way 
of  necessity,  for  the  land  of  such  lot  with  the  added 
weight  of  the  building.^^^ 

Ways   of  necessity.     By   far   the  most   usual 

instance  of  an  easement  of  necessity  is  a  way  of  neces- 
sity. Such  an  easement  ordinarily  arises  when  one 
conveys  to  another  land  entirely  surrounded  by  his,  the 
grantor's,  land,^^  or  which  is  accessible  only  across 
either  the  grantor's  land  or  the  land  of  a  stranger.^^ 
In  such  a  case,  unless  the  conveyance  is  regarded  as 
giving,  as  appurtenant  to  the  land  conveyed,  a  right 
of  way  over  the  land  retained  by  the  grantor,  the 
grantee  can  make  but  a  limited  use,  if  any,  of  the  land 

54c.     Ante,    §    363b,    notes,    48,  56.     Gilfoy  v.   RandaU,   274   lU. 

49.  128,  113  N.  E.  88;  Thomas  v.  Mc- 

54d.     See    Sterrett    v.    Baudler,  Coy,   48   Ind.   App.   403,   96   N.   E. 

—  Iowa,  — ,  165  N.  W.  216.  14;     Fairchild     v.     Stewart,     117 

55.     Pomfret      v.      Ricroft,      1  Iowa,  734,  89  N.  W.  1075;  Adams 

Saund.  323,  note  6;  Pinnington  v.  v.  Hodgkins,  109  Me.  361,  84  Atl. 

Galland,    9    Exch.    1;    Tayloi*    v.  530;    Zimmerman  v.   Cockey,   118 

V/arnaky,  55  Cal.  350;    Collins  v.  Md.    491,    84    Atl.    743;     Pleas    v. 

Prentice,  15  Conn.  39,  38  Am.  Dec.  Thomas,  75  Miss.  495,  22  So.  820* 

61;    Mead    v.   Anderson,    40    Kan.  Higbee   Fishing   Club   v.    Atlantic 

203,  19  Pac.  708;  Leonard  v.  Leon-  City  Elec.  Co.,  78  N.   J.   Eq.   434, 

ard,  2  Allen   (Mass.),  543;  Powers  79    Atl.    326;    Palmer   v.    Palmer, 

V.  Harlow,  53  Mich.   507,  51  Am.  150   N.  Y.   139,   55   Am.  Rep.   653, 

Rep.  154,  19  N.  W.  257;   Board  of  4t  N.  E.  966;  Wooldridge  v.  Cough- 

Sup'rs  of  Lamar  County  v.  Elliott.  lin,  46  W.  Va.  345,  33  S.  E.  233; 

107   Miss.   841,   6G   So.   203;    Kim-  Proudfoot  v.  Saffle,  62  W.  Va.  51, 

ball    V.    Cochecho    R.    Co.,    27    N.  12  L.  R.  A.   (N.  S.)   482,  57  S.  E. 

H.  448,  59  Am.  Dec.  387;  Holmes  256. 

V.   Seely,   19   Wend.    (.N.   Y.)    507;  "The    deed    of    the    grantor    as 

Bond  V.   Willis,   84  Va.   7{)»5,    6   S.  much  creates  the  way  of  necessity 

E.   136.  as  it  does  the  way  by  grant.    The 


1298 


Eeaxi  Peoperty. 


[§  363 


conveyed  to  liim,  and  the  courts,  in  pursuance  of  con- 
siderations of  public  policy  favorable  to  the  full  utiliza- 
tion of  the  land,  and  in  accordance  with  the  presumable 
intention  of  the  parties  that  the  land  shall  not  be  with- 
out any  means  of  access  thereto,  have  established  this 
rule  of  construction  that,  in  the  absence  of  indications 
of  a  contrary  intention,  the  conveyance  of  the  land 
shall  in  such  case  be  regarded  as  vesting  in  the  grantee 
a  right  of  way  across  the  grantor's  land.-^^ 

Xot  only  may  a  way  of  necessity  arise  in  favor  of 
the  grantee  of  land,  but  it  may  also  arise  in  favor  of 
the  grantor,  when  one  conveys  land  which  is  so  situated 
as  to  render  land  retained  by  him  inaccessible  except 
over  the  land  conveyed  or  the  land   of   a   stranger.^* 


only  difference  between  the  two 
is,  that  one  is  granted  in  express 
words  and  the  other  only  by  im- 
plication." Nichols  V.  Luce,  24 
Pick.  (Mass.)  102,  35  Am.  Dec. 
302,  per  Morton,  J. 

57.  "Although  it  is  called  a 
way  of  necessity,  yet  in  strict- 
ness, the  necessity  does  not 
create  the  way,  but  merely  fur- 
nishes evidence  as  to  the  real 
intention  of  the  parties.  For  the 
law  will  not  presume,  that  it 
was  the  intention  of  the  parties, 
that  one  should  convey  land  to 
the  other,  in  such  manner  that 
the  grantee  could  derive  no  bene- 
fit from  the  conveyance;  nor  that 
he  should  so  convey  a  portion  as 
to  deprive  himself  of  the  enjoy- 
ment of  the  remainler.  The  law, 
under  such  circumstances,  will 
give  effect  to  the  grant  according 
to  the  presumed  intent  of  the 
parties."  Waite  J.,  in  Collins  v. 
Prentice,  15  Conn.  39,  38  Am. 
Dec.   61. 


58.  Clark  v.  Cogge,  Cro.  Jac. 
170;  Pinnington  v.  Galland,  9 
Exch.  1;  Corporation  of  London 
V.  Riggs,  13  Ch.  Div.  789;  Collins 
V.  Prentice,  15  Conn.  39,  38  Am. 
Dec.  61;  Stamper  v.  McXabb,  172 
Ky.  253,  189  S.  W.  216;  White- 
house  V.  Cummings,  83  Me.  91,  23 
Am.  St.  Rep.  756,  21  Atl.  743;  Jay 
V.  Michael,  92  Md.  198,  48  Atl. 
61;  Nichols  v.  Luce,  24  Pick. 
(Mass.)  102,  35  Am.  Dec.  302; 
New  York  &  N.  E.  R.  Co.  v.  Board 
of  Railroad  Com'rs,  162  Mass.  81, 
38  N.  E.  27;  Pleas  v.  Thomas,  75 
Miss.  495,  22  So.  820;  Herrin  v. 
Sieben,  46  Mont.  226,  127  Pac. 
323;  Pingree  v.  McDuffie,  56  N. 
H.  306;  Shoemaker  v.  Shoe- 
maker, 11  Abb  N.  Cas.  (N.  Y.) 
80;  Meredith  v.  Frank,  56  Ohio 
St.  479,  47  N.  E.  656;  Willey  v. 
Thwing,  68  Vt.  128,  34  Atl.  428; 
Koffman  v.  Shoemaker,  69  W.  Va. 
233,  34  L.  R.  A.  (N.  S.)  632,  71  S. 
E.   198. 


§  363]  Easements.  1299 

In  such  a  case  the  conveyance  is  construed  as  passing, 
not  land  free  from  any  easement,  but  land  subject  to 
an  easement  of  a  right  of  way  in  favor  of  the  land  re- 
tained. Such  an  implied  reservation  of  an  easement  to 
a  certain  extent  involves  a  violation  of  tlie  rule  which 
precludes  one  from  derogating  from  his  own  grant,  but 
it  is  recognized  and  upheld  by  the  courts  from  the  con- 
siderations of  public  policy  above  mentioned/"^^ 
The  fact  that  the  conveyance  contains  a  warranty  or 
other  covenant  of  title  has  been  regarded  as  insufficient 
to  exclude  such  an  implication,*'"  though  it  might  no 
doubt  be  excluded  by  language  in  the  conveyance  or, 
it  seems,  by  evidence  of  surrounding  circumstances, 
calling  for  a  different  construction.*''^'^ 

Since  a  reservation  as  w^ell  as  a  grant  of  a  right  of 
way  may  thus  be  implied  on  the  ground  of  necessity,  it 
is  iimnaterial,  for  the  purpose  of  establishing  a  way 
on  this  ground,  whether  the  asserted  dominant  tene- 
ment was  disposed  of  by  the  common  owner  before  or 
after  the  asserted  servient  tenement. 

In  case  the  owner  of  land  conveys  to  another 
timber  growing  thereon,  the  conveyance  is  to  a  great 
extent  nugatory  unless  the  grantee  has  the  privilege  of 
going  on  the  land  in  order  to  cut  the  timber,  and  con- 
sequently the  instrument  would  ordinarily  be  con- 
strued as  granting  such  privilege  or,  in  other  words, 
he  has  a  w^ay  of  necessity.*'^  And  so  a  convej'^ance  of 
minerals  in  the  soil  is  ordinarily  regarded  as  giving 
the   privilege   of   passing   over   the   grantor's    land    in 

59.  See  Packer  v.  Welsted,  2  York  etc.  R.  C.  v.  Board  of  Rail- 
Sid.  39,  111;  Button  v.  Tayler,  2  road  Com'rs,  162  Mass.  81,  38  N. 
Lutw.  1487;  Pinnington  v.  Gal-  E.  27;  Jay  v.  Michael,  92  Md. 
land,  9  Exch.  1.  198,  48  Atl.  61. 

60.  Meredith  v.  Frank,  56  Ohio  60a.  Post,  this  section,  notes 
St.    479,    47    N.    E.    656;    McEwan  70-75. 

V.  Baker,  98  111.  App.  271;  Powers  61.     Pine   Tree    Lumber   Co.    v. 

V.   Heffernan,   233    111.   597,   84   N.  McKinley,  83  Minn.  419,  86  N.   VV. 

E.  661;  Brig-ham  v.  Smith,  4  Gray  414;  Worthen  v.  Garno,  182  Mas.s. 

(Mass.)  297,  64  Am.  Dec.  76;  New  243,  65  N.  E.  243. 


1300 


Eeal  Property. 


[§  363 


order  to  extract  the  minerals,  and  of  constructing  roads, 
tram  and  railway  tracks  to  such  an  extent  as  may  be 
necessary  for  this  purpose,*^-  and  such  a  conveyance, 
moreover,  in  order  that  it  may  be  effective,  ordinarily 
involves  of  necessity  the  privilege  of  sinking  shafts 
through  the  surface  of  the  land  for  the  purpose  of  ex- 
tracting the  minerals.^2^  What  is  in  effect  a  way  of 
necessity  may  also  exist  in  connection  with  the  grant  of 
an  easement,  in  so  far  as  this  involves  the  necessity  of 
passing  over  the  grantor's  land  in  order  to  exercise 
the  easement.^^ 

A  way  of  necessity  does  not,  as  is  sometimes  sup- 
posed, exist  merely  by  reason  of  the  fact  that  otherwise 
one  has  no  access  to  his  land.'^^     As  above   stated,  it 


62.  Dand  v.  Kingscote,  6  M.  & 
W.  174;  Consolidated  Coal  Co.  v. 
Savitz,  57  111.  App.  659;  Marvin 
V.  Brewster  Iron  Mining  Co.,  55 
X.  Y.  538,  14  Am.  Rep.  322.  Baker 
V.  Pittsburg  C.  &  W.  R.  Co.,  219 
Pa.  398,  68  Atl.  1014;  Pearne  v. 
Coal  Creek  M.  &  M.  Co.,  90  Tenn. 
619,  18  S.  W.  402;  Porter  v.  Mack 
Mfg.  Co.,  65  W.  Va.  636,  64  S. 
E.  853;  1  Barringer  &  Adams, 
Mines  &  Mining,  576,  2  Id.  598. 

62a.  Cardigan  v.  Armitage,  2 
Barn.  &  C.  197;  Hooper  v.  Dora 
Coal  Min.  Co.,  95  Ala.  235,  10  So. 
652;  Ewing  v.  Sandoval  C.  &  M. 
Co.,  110  111.  290;  Ingle  v.  Bot- 
toms, 160  Ind.  73,  66  N.  E.  160; 
Marvin  v.  Brewster  Iron  Mining 
Co.,  55  N.  Y.  538;  Baker  v.  Pitts- 
burg C.  &  W.  R.  Co.,  219  Pa.  398, 
68  Atl.  1014;  3  Lindley,  Mines, 
§  813. 

In  Chartiers  Block  Coal  Co.  v. 
Mellon,  152  Pa.  St.  286,  18  L.  R.  A. 
702,  34  Am.  St.  Rep.  645,  25  Atl. 
597,  the  owner  of  land  having 
conveyed    to    another    the    strata 


of  coal  beneath  the  surface  and 
subsequently  discovering  the  pres- 
ence of  oil  beneath  the  coal,  as- 
serted the  right  to  bore  wells 
through  the  coal,  and  his  claim 
was  sustained.  It  was  recognized 
however  that  it  could  not  well 
be  sustained  on  the  theory  of  a 
way  by  necessity,  without  a  con- 
siderable modification  of  that  doc- 
trine, and  the  view  was  asserted 
that  the  right  of  access  in  such 
case  should  be  sustained  as  a 
natural  right.  See  editorial  note 
17  Harv.  Law  Rev.  at  p.  47.  And 
on  the  authority  of  this  case  it 
was  held  that  there  was  a  natural 
right  to  sink  an  artesian  well 
through  the  strata  of  coal.  Penn- 
sylvania Cent.  Brew.  Co.  v.  Le- 
high Valley  Coal  Co..  250  Pa.  300, 
95  Atl.  47. 

63.  Willoughby  v.  Lawrence, 
116  in,  11,  56  Am.  Rep.  758,  4 
N.  E.  356;  R.  J.  Gunning  v.  Cusack, 
50    111.   App.   290. 

64.  Bullard  v.  Harrison,  4 
Maule  &  S.  387;   Banks  v.  School 


<^  363] 


Easements. 


1301 


arises  in  connection  with  a  conveyance  of  land  by  one 
who  retains  adjoining  land,  and  consequently  it  is 
necessary,  in  order  to  establish  such  a  way,  to  show 
that  at  some  time  in  the  past  the  land  for  the  benefit  of 
which  the  way  is  claimed  and  that  in  which  it  is 
claimed  belonged  to  the  same  person.''^  Provided  this 
unity  of  o\^Tlership  is  shown  to  have  existed,  its  remote- 
ness either  in  point  of  time  or  by  reason  of  intervening 
conveyances  appears  to  be  immaterial.*^'^ 

Whether  the  previous  ownership  by  the  state  or 
federal  government  of  both  pieces  of  land,  with  a  sub- 
sequent grant  or  sale  by  it  of  one  or  both  of  them,  is 
sufficient  to  justify  a  finding  of  a  way  of  necessity, 
appears  to  b-e  open  to  question.     In  one  case^^  it  was 


Directors  of  Dist.  No.  1  of  Mc- 
Lean County,  194  III.  247,  62  N. 
E.  604;  Whitehouse  v.  Cummings, 
83  Me.  91,  23  Am.  St.  Rep.  756, 
21  Atl.  743;  Brice  v.  Randall,  7 
Gill  &  J.  (Md.)«  349;  Nichols  v. 
Luce,  24  Pick.  (Mass.)  102,  35 
Am.  Dec.  302;  Roper  Lumber  Co. 
V.  Richmond  Cedar  Works,  158 
N.  Car.  161,  73  S.  E.  902;  Ellis 
V.  Blue  Mountain  Forest  Ass'n,  6!) 
N.  H.  385,  42  L.  R.  A.  570.  41 
Atl.  856;  Carmon  v.  Dick,  170 
N.  C.  305,  87  S.  E.  224;  McKinnev 
V.  Duncan,  121  Tenn.  265,  118  S. 
W.  683;  Tracy  v.  Atherton.  35 
Vt.  52,  82  Am.  Dec.  621;  Schu- 
lenbarger  v.  Johnstone,  46  Wash. 
202,  35  L.  R.  A.  (N.  S.)  941,  116 
Pac.  843. 

65.  Thrump  v.  :M€Donnell,  120 
Ala.  200,  24  So.  353;  Stewart  v. 
Hartman,  46  Ind.  331;  Ellis  v. 
Blue  Mountain  Forest  Ass'n,  69 
N.  H.  385,  42  L.  R.  A.  570,  41 
Atl.  856;  Dudley  v.  Meggs,  54  Okla. 
65,  153  Pac.  1122;  McBurney  v. 
Glenmary   Coal   &   Coke   Co.,   121 


Tenn.  275,  118  S.  W.  694  (semble) ; 
Tracy  v.  Atherton,  35  Vt.  52,  82 
Am.  Dec.  621;  Crotty  v.  New 
River  etc.  Coal  Co.,  72  W.  Va.  68, 
78  S.  E.  233. 

66.  See  Taylor  v.  Warnaky,  55 
Cal.  350;  Logan  v.  Stogsdale,  123 
Ind.  372,  8  L.  R.  A.  58,  24  N.  E. 
135;  Conley  v.  Fairchild  142  Ky. 
271,  134  S.  W.  142;  Feoffees  of 
Grammar  School  in  Ipswich  v. 
Jeffrey's  Neck  Pasture,  174  Mass. 
572,  55  N.  E.  462;  Crotty  v.  New 
River  &  Pocahontas  Consol.  Coal 
Co.,  72  W.  Va.  68,  78  S.  E  233. 

67.  Herrin  v.  Siebern,  46  Mont. 
226,  127  Pac.  323,  vi^here  it  was 
held  that  on  a  grant  by  the  United 
States  of  odd  numbered  sections 
of  land,  there  was  implied  res- 
ervation of  a  way  of  necessity  in 
favor  of  the  United  States  for 
the  benefit  of  private  persons  de- 
siring to  settle  on  the  land  re- 
tair,?d,  or  to  go  thereon  for  propei'- 
purposes,  as  to  search  for  min- 
erals or  graze  cattle. 


1302  Eeal  Property.  [§  363 

held  that  a  right  of  way  of  necessity  was  to  he  regarded 
as  reserved  upon  a  grant  hy  the  federal  government,  hut 
there  are  two  cases  to  the  effect  that  the  doctrine  of 
ways  of  necessity  has  no  application  in  connection  with 
such  a  grant.^^  And  it  has  also  been  decided  that 
such  a  right  does  not  exist  in  favor  of  a  grantee  of 
the  state  over  land  retained  by  the  state.*^^  It  is  not 
entirely  clear  why  a  conveyance  by  the  government 
should  be  subject  to  a  different  rule  in  this  respect 
from  a  conveyance  by  a  private  individual.  The  same 
intention  may  well  be  imputed  to  it  as  to  an  individual, 
not  itself  to  hold  or  to  vest  in  another  land  which 
cannot  be  utilized  for  lack  of  a  means  of  approach,  and 
the  same  considerations  of  public  policy  in  favor  of 
the  utilization  of  the  land  apply  in  both  cases. 

Since  the  grant  or  reservation  of  a  way  of  neces- 
sity is  implied  merely  to  accord  with  the  presumed 
intention  of  the  parties,  such  an  implication  may  be 
excluded  by  particular  language  in  the  conveyance.'*' 
So  the  fact  that  there  was  an  express  'provision  for 
some  particular  mode  of  access  has  been  regarded  as 
preventing  the  recognition  of  a  way  of  necessity.'^ ^ 
And  a  like  effect  has  been  given  to  a  reference  in  the 
conveyance  to  adjoining  land,  which  extended  to  the 
highway,  as  belonging  to  the  grantee,  the  grantee 
claiming  under  such  conveyance  being  precluded  from 
denying  the  correctness  of  such  reference  and  con- 
sequently from  denying  that  he  has  this  other  means 
of  access  to  the  highway.'^^  It  might  also  be  excluded, 
it  seems,  by  evidence  of  extrinsic  facts."^     An  intention 

68.  Bully  Hill  Copper  Min.  &  71.  Georke  Co.  v.  Wadsworth. 
Smelting  Co.  v.  Bruson,  4  Cal.  73  N.  J.  Eq.  448,  68  Atl.  71;  Bas- 
App.  180,  87  Pac.  237;  United  com  v.  Cannon,  158  Pa.  225,  27 
States  V.  Rindge,  208  Fed.  611.  Atl.  968. 

69.  Pearne  v.  Coal  Creek  M.  &  72.  Doten  v.  Bartlett,  107  Me. 
M.  Co.,  90  Tenn.  619,  18  S.  W.  351,  32  L.  R.  A.  (N.  S.)  1075,  78 
402.  Atl.  456. 

70.  Seely  v.  Bishop,  19  Conn.  73.  See  Mead  v.  Anderson,  40 
128.  Kan.  203,  19  Pac.  708;    Seeley  v. 


§  363]  Easements.  1303 

to  grant  or  reserve  such  an  easement,  for  instance,  could 
not  well  be  presumed  in  ease  there  was  an  oral  agree- 
ment that  no  right  of  way  should  existJ*  And  so  if 
land  is  conveyed  with  an  explicit  understanding  that  it 
is  to  be  covered  by  a  building,  it  could  not  well  be  con- 
tended tliat  the  grantor  had  a  right  of  way  of  necessity 
throuah  the  building. 

If,  in  a  conveyance  of  land,  a  way  is  provided,  it 
has  been  said,  which  gives  access  for  ordinary  purposes 
to  the  lot  granted,  no  way  of  necessity  will  arise,  al- 
though that  way  is  not  sufficient  for  all  purposes,^^  or, 
to  exjDress  it  more  in  accordance  \\'ith  principle,  the 
existence  of  a  way  for  ordinary  purposes  is  sufficient 
to  exclude  any  presumption  of  an  intention  that  a  way 
for  all  purposes  shall  exist. 

An  easement  of  necessity,  like  any  other  easement, 
cannot  be  imposed  upon  land  not  owned  by  the  gran- 
tor,"^^  or  in  which  he  has  an  undivided  interest  only."^ 

Since  a  way  of  necessity  exists  by  reason  of  a  con- 
struction of  the  conveyance,  based  on  the  necessity  of 
such  way  to  the  user  of  the  land  conveyed  or  retained,  it 
is  the  necessity  which  exists  at  the  time  of  the  conveyance 
which  determines  the  existence  of  the  way,  and  not  a 
necessity  which  may  subsequently  arise  by  reason  of  a 
change    of    circurastances.'^^'^'    A   conveyance    is    to    be 

Bishop,  19  Conn.  128.  wood   v.   West,    171    Ala.    463,    54 

74.  Lebus    v.    Boston,    21    Ky.       So.  694. 

Law  Rep.  411,  47  L.  R.  A.  79,  92  77.     Woodworth  v.  Raymond,  51 

Am.   St.   Rep.  333,   51   S.  W.    607.  Conn.  70;     Marshall  v.  Trumbull, 

See   Ewert  v.  Burtis    (N.   J.   Ch.)  28  Conn.  183.     But  if  the  various 

12   Atl.   893.  owners    of   the   land   make   deeds 

75.  Haskell  v.  Wright,  23  N.  J.  for     the     purpose     of     partition 
Eq.  389.  one    who    acquires    a     tract    not 

76.  Consequently  there  is  no  otherwise  accessible  would  have 
grant  of  a  right  of  way  by  neces-  a  way  of  necessity.  Palmer  v. 
sity  when  the  land  granted  and  Palmer,  150  N.  Y.  139,  55  Am.  St. 
that  retained  meet  only  at  a  Rep.  653,  44  N.  E.  966. 
mathematical  point,  that  is,  when  77a.  Kentucky  Distilleries  & 
merely  a  corner  of  one  touches  Warehouse  Co.  v.  Warwick  Co., 
a    corner    of    the    other.      Green-  1C6  Ky.  651,  179  S.   W.  Oil;   Cor- 


1304  Eeal  Property.  [§  363 

construed  with  reference  to  the  circumstances  existing 
at  the  time  of  its  execution  and  not  those  subsequently 
arising. 

The  grant  of  a  way  of  necessity  is  implied  in  order 
to  enable  one  to  utilize  his  own  land  and  not  to  enable 
him  to  utilize  other  land,  and  consequently  one  has  no 
such  right  over  another's  land  merely  because  of  his  in- 
ability otherwise  to  reach  public  land  where  he  desires 
to  pasture  his  cattle.'^'^^ 

While  the  implication  of  a  way  of  necessity  is 
almost  invariably  for  the  purpose  of  access  to  the 
hind  from  the  highway,  occasionally  a  way  of  necessity 
has  been  recognized,  apparently  without  reference  to 
the  question  of  its  necessity  for  the  purpose  of  access 
from  the  highway,  but  merely  to  give  access  to  other 
land  belonging  to  the  same  person,  when  he  has 
conveyed  an  intervening  strip  for  a  railroad  right  of 
way.'^^ 

Upon  a  subsequent  transfer  of  the  dominant  tene- 
ment a  way  of  necessity  appurtenant  thereto,  like  any 
other  easement,  passes  without  any  mention  thereof.'^ 
And  the  burden  passes  upon  the  conveyance  of  the  ser- 

nell     Andrews     Smelting     Co.     v.  conveyed    a    strip    of    land    to    a 

Boston    &    P.    R.    Co.,    Corp.,    202-  railroad  company  for  a  right  of 

Mass.  585,  89  N.  E.  118.    Post,  this  way    was,    upon    the    Subsequent 

section,   notes   97-99.  discovery     of     natural     gas,     re- 

77b.     Mcllquhain     v.     Anthony  garded   as   entitled   to   a   way   by 

Wilkinson  Live  Stock  Co.,  18  Wyo.  necessity    thereover    for    a    pipe 

53,  104  Pac.  20.  line  to  conduct  gas  to  his  dwell- 

78.     Cleveland,    etc.,    R.    Co.    v.  ing.     Uhl   v.    Ohio   River   R.   Co., 

Smith,  177  Ind.  524,  97  N.  E.  164;  47  W.  Va.  59,  34  S.  E.  934. 

Pittsburgh,  C.  C.  &  St.  L.  Rwy.  Co.  79.     Taylor  v.  Warnaky,  55  Cal. 

V.   Kearns,   58   Ind.  App.   694,  108  SbO;   Conley  v.  Fairchild,  142  Ky. 

N.    E.    873;    Vandalia    R.    Co.    v.  271,    134     S.     W.     142;     Bean    v. 

Furnas,    182    Ind.    306,    106    N.    E.  Bean,    163    Mich.    379,    128    N.    W. 

401;    New    York,    etc.,    R.    Co.    v.  413;    Pleas   v.    Thomas,    75    Miss. 

Railroad       Commissioners,       162  495.    22    So.    820;    Wcoldridge    v. 

Mass.  81,  38  N.  E.-27.    In  one  case  Coughlin,  46  W\  Va.  345,  33  S.  E. 

the     owner     of    land     who     had  223. 


^  363] 


Easements. 


1305 


vient    tenement    except    as    against    a    purchaser    for 
value  without  notice.^" 

Character  of  conveyance.     A  way  of  necessity 


may  arise  r?pon  a  conveyance  of  land  although  at  the 
same  time  the  grantor  conveys  away  the  balance  of  his 
land  to  another,^^  and  so  it  may  arise  upon  a  devise.^- 
It  may  also  arise  by  force  of  a  lease.^^'  It  has  been 
regarded  as  arising  on  a  conveyance  by  a  trustee,^*  and 
also  by  an  executor.^^ 

A  way  of  necessity  has  been  regarded  as  arising 
not  only  when  the  severance  of  the  ownership  of  the 
two  pieces  of  land  occurs  as  a  result  of  voluntary 
transfer,  but  also  when  it  occurs  as  a  result  of  legal 
proceedings,^*^  as  when  one  piece  is  sold  under  a  lien,^^ 
or  under  execution,^^  or  is  taken  under  condemnation 
proceedings.'^^    And  likewise  when  the  severance  of  the 


80.  Logau  V.  Stogsdale,  123 
Ind.  372,  8  L.  R.  A.  58,  24  N.  E. 
135;  Jay  v.  Michael,  92  Md.  198; 
Fairchild  v.  Stewart,  117  Iowa, 
734,  89  N.  W.  1075;  Thomas  v. 
McCoy,  48  Ind.  App.  403,  96  N. 
E.  14;  Higbee  Fishing  Club  v. 
Atlantic  City  Electric  Co.,  78  N. 
J.  Eq.  434,  79  Atl.  326. 

81.  Palmer  v.  Palmer,  150  N. 
Y.  139,  55  Am.  St.  Rep.  653,  44  N. 
E.  966;  Mitchell  v.  Seipel,  53  Ind. 
251. 

82.  Mclntire  v.  Lauchner,  108 
Me.  443,  81  Atl.  784;  Conover  v. 
Cade,  184  Ind.  604,  112  N.  E.  7. 

In  Mancuso  v.  Riddlemoser,  117 
Md.  53,  82  Atl.  1051,  it  was  held 
that  when  the  control  of  a  door 
in  the  cellar  of  a  building  was 
"strictly  necessary"  for  purposes 
of  ventilation  and  the  manage- 
ment of  the  heating  apparatus, 
the  right  to  control  it  would 
be  implied  in  favor  of  the  owner 


of  the  building  as  against  one 
to  whom  he  had  leased  a  part  of 
the  building  including  the  cellar 
S3.  Tutwiler  Coal,  Coke  &-. 
Iron  Co.  V.  Tuvin,  158  Ala.  657. 
48  So.  79;  Powers  v.  Harlow,  53 
Mich.  507,  51  Am.  Rep.  154,  19  N. 
W.  257. 

84.  Howton  v.  Frearson,  8 
Term  Rep.  50. 

85.  Collins  v.  Prentice,  15 
Conn.  39,  38  Am.  Dec.  61. 

86.  See  Bean  v.  Bean,  163 
Mich.  379,  128  N.  W.  413. 

87.  San  Joaquin  Valley  Bank 
v.  Dodge,  125  Cal.  77,  57  Pac. 
687;  Proudfoot  v.  Saffle,  62  W. 
Va.  51,  12  L.  R.  A.  (N.  S.)  482, 
57  S.  E.  256. 

88.  Damron  v.  Damron,  119 
Ky.   806,   84   S.   W.   747. 

89.  Clcvchmd,  C,  C.  &  St.  L. 
R.  Co.  v.  Smith,  177  Ind.  524,  97 
N.  E.  164. 


1306 


Real  Peoperty. 


[§  36^ 


ownership  occurs  as  a  result  of  partition  proceedings. ^"^ 
It  has  also  been  regarded  as  arising  when  land  is  set 
off  by  appraisement  under  an  execution,  in  such  a  way 
that  either  the  land  retained  by  the  debtor  or  that  set 
off  is  otherwise  inaccessible.^^  In  all  these  cases  in 
which  a  way  of  necessity  is  regarded  as  arising  in  favor 
of  one  who  acquires  land  by  legal  jDroceedings,  the 
''implied  grant"  of  the  way  is,  it  seems,  properly  to 
be  regarded  as  based  on  a  construction  of  the  language 
of  the  official  conveyance,  or  of  the  decree,  as  intended 
to  include  the  right  of  way. 

Degree  of  necessity.     A  way  of  necessity  will 


not  ordinarily  be  recognized  if  there  is  another  mode 
of  access  to  the  land,  though  much  less  convenient,  that 
is,  as  has  been  sometimes  said,  a  way  of  convenience 
is  not  a  way  of  necessity.^^     ^j^^j  g^  ^^^  ^^^^  ^|-^^^  ^1^^ 


90.  Blum  V.  Weston,  102  Cal. 
362,  36  Pac.  778,  41  Am.  St.  Rep. 
188;  Mesmer  v.  Uharriet,  174  Cal. 
110,  162  Pac.  104;  Ritchey  v. 
Welsh,  149  Ind.  214,  48  N.  E.  1031, 
40  L.  R.  A.  105;  Goodal  v.  God- 
frey, 53  Vt.  219,  38  Am.  Rep. 
671. 

91.  Pernam  v.  Wead,  2  Mass. 
203,  3  Am.  Dec.  43;  Taylor  v. 
Townsend,  8  Mass.  411,  5  Am. 
Dec.  107;  Russell  v.  Jackson,  2 
Pick.  (Mass.)  574;  Schmidt  v. 
Quinn,  136  Mass.  575. 

92.  Dodd  V.  Burchell,  1  Hurl. 
&  C.  113;  Corea  v.  Higuera,  153 
Cal.  451,  17  L.  R.  A.  (N.  S.)  1019, 
95  Pac.  882;  Sterricker  v.  Mc- 
Bride,  157  111.  70;  Ward  v.  Robert- 
son, 77  Iowa,  159,  41  N.  W.  603; 
Hall  V.  McLeod,  2  Mete.  (Ky.) 
98,  74  Am.  Dec.  400;  Whitehouse 
V.  Cummings,  83  Me.  91,  23  Am. 
St.  Rep.  756,  21  Atl.  743;  Mitchell 
V.  Seipel,  53  Md.  251;    Nichols  v. 


Luce,  24  Pick.  (Mass.)  102;  Dab- 
ney  v.  Child,  95  Miss.  585,  48  So. 
897;  Field  v.  Mark,  125  Mo.  502. 
28  S.  W.  1004;  Roper  Lumber 
Co.  V.  Richmond  Cedar  Works,  158 
N.  C.  161,  73  S.  E.  902;  Meredith 
V.  Frank,  56  Ohio  St.  479,  47  N. 
E.  656;  Lankin  v.  Terwilliger,  22 
Ore.  97,  29  Pac.  268;  Valley  Falls 
Co.  V.  Dolan,  9  R.  I.  489;  Bailey 
V.  Gray,  53  S.  C.  503,  31  S.  E. 
354;  Alley  v.  Carleton,  29  Tex. 
74;  Dee  v.  King,  73  Vt.  375,  50 
Atl.  1109;  Malsch  v.  Waggoner, 
62  Wash.  470,  114  Pac.  446  iseyn- 
ble) ;  Mcllquahain  v.  Anthony  Wil- 
kinson Live  Stock  Co.,  IS  Wyo. 
53,  104   Pac.   20. 

As  to  whether  the  use  of  a 
staircase  on  adjoining  property 
could,  under  the  circumstances,  be 
regarded  as  necessary  and  not 
merely  convenient,  see  Galloway 
V.  Bonesteel,  65  Wis.  79,  56  Am. 
Rep.  616,  26  N.  W.  262;   Stillwell 


§  363] 


Easements. 


130' 


existing-  wav  is  steep  or  narrow,^^  or  can  be  made 
available  onlv  bv  the  expenditure  of  money  or  labor,"'' 
has  been  held  not  to  justify  a  finding  of  a  way  of 
necessity.  On  the  other  hand  there  are  decisions  to 
the  effect  that  if  the  cost  of  the  construction  of  a  road 
over  one's  own  land,  as  a  means  of  access  to  any 
particular  portion  thereof,  would  involve  very  great 
expeuse,  out  of  proportion  to  the  value  of  the  land 
itself,  there  is  such  a  necessity  for  a  way  over  another's 
land  as  to  justify  the  recognition  of  a  way  of  necessity.^^ 
Whether  the  fact  that  the  land  is  otherwise 
accessible  only  by  water  is  a  justification  for  assuming 
the  existence  of  a  way  of  necessity  across  the  land  is  a 
matter  as  to  which  the  cases  are  not  entirely  clear."'^ 


V.  Foster,  80  Me.  333,  14  Atl.  731; 
Quimby  v.  Shaw,  71  N.  H.  160,  51 
Atl.  656. 

93.  Kripp  V  Curtis,  71  Cal.  62, 
11  Pac.  879;  Gaines  v.  Lunsford, 
120  Ga.  370,  47  S.  E.  967,  102  Am. 
St.  Rep.  109;  Dudgeon  v.  Bron- 
pon,  159  Ind.  562,  95  Am.  St.  Rep. 
815;  Turnbull  v.  Rivers,  3  Mc- 
Cord  (S.  C.)  131,  15  Am.  Dec.  622; 
United  States  v.  Rindge,  208  Fed. 

611. 

94.  Carey  v.  Rae,  58  Cal.  159; 
Gaines  v.  Lunsford,  120  Ga.  370, 
102  Am.  St.  Rep.  109,  47  S.  E. 
967;  Nichols  v.  Luce,  24  Pick. 
(.Mass.)  102,  35  Am.  Dec.  302; 
Dee  V.  King,  73  Vt.  375,  50  Atl. 
1109;  Shaver  v.  Edgell,  48  W. 
Va.  502,  37  S.  E.  664;  Fitchett  v. 
Mellow,  29  Ont.  Rep.  6.  See  Mes- 
mer  v.  Uharriet,  174  Cal.  110,  162 
Pac.  104. 

95.  Smith  V.  Griffin,  14  Colo. 
429,  23  Pac.  905;  Watson  v. 
French,  112  Me.  371,  L.  R.  A. 
1915C,  355,  92  Atl.  290;  Pettin- 
gill  V.  Porter,  8  Allen  (Mass.)   1, 


85  Am.  Dec.  671;  Foeffees  of 
Grammar  School  in  Ipswich  v. 
Proprietors  of  Jeffrey's  Neck  Pas- 
ture, 174  Mass.  572;  O'Rorke  v. 
Smith,  11  R.  I.  259,  23  Am.  Rep. 
440;  Crotty  v.  New  River  &  Poca- 
hontas Consol.  Coal  Co.,  72  W. 
Va.  68,  78  S.  E.  230.  See  as  to 
the  citerion  of  disproportionate 
expense,  U.  S.  v.  Rindge,  208  Fed. 

eii. 

96.  In  Feoffees  of  Grammar 
School  in  Ipswich  v.  Proprietors 
of  .Jeffrey's  Neck  Pasture,  174 
Mass.  572,  it  was  decided  that  a 
way  of  necessity  existed,  although 
there  was  access  by  water,  if 
the  latter  mode  of  access  was 
not  available  for  general  purposes 
to  meet  the  requirements  of  the 
uses  to  which  the  property  would 
naturally  he  put.  And  in  Jay  v. 
Michael,  92  Md.  198.  it  is  assum- 
ed that  the  fact  of  access  by 
water  is  immaterial.  But  in  Kings- 
ley  V.  Gouldsboroug'h  Land  Im- 
provement Co.,  86  Me.  280;  Ilil- 
dreth    v.    Googins,    91    Me.    227; 


1308  Real  Peopeety.  [§  363 

Since  the  recognition  of  a  way  -of  necessity  is 
based  on  the  intention  imputed  to  the  parties  at  the 
time  of  the  severance  of  the  ownership,  it  follows  that 
the  existence  of  the  privilege,  and  also  its  extent,  is 
to  be  determined  with  reference  to  what  is  necessary  for 
the  use  of  the  premises  in  the  manner  contemplated 
by  the  parties  at  the  time  of  such  severance.^ '^  So  if 
the  parties  contemplate  a  use  of  the  land  for  a  par- 
ticular business,  there  is  a  right  of  way  of  necessity 
sufiScient  for  the  purposes  of  the  business,  if  no  other 
way  sufficient  for  that  purpose  exists,^^  and  if  the 
parties  contemplate  a  use  of  the  land  for  a  residence, 
there  is  a  way  of  necessity  sufficient  for  that  purpose, 
if  no  other  way  so  sufficient  exists.^**  The  fact  that 
a  particular  use  of  the  land  is  being  made  at  the  time 
of  the  severance  of  ownership  does  not  of  itself 
show  that  the  parties  do  not  contemi:)late  the  possibility 
of  another  use  of  the  land,  and  hence  does  not  pre- 
clude the  recognition  of  a  way  of  necessity,  upon  a  sub- 
sequent change  of  use,  in  accord  with  the  requirements 
of  the  latter  rather  than  of  the  former  use.^  And 
the  view  has  been  taken  that  the  parties  are  to  be  pre- 
sumed, in  the  absence  of  any  evidence  on  the  subject, 
to  have  in  mind  any  lawful  use  of  the  land.^ 

Lawton  V.   Rivers,   2   McCord    (S.  Riggs,  L  R.   13  Ch.   D.   798.     See 

C.)  445;  Turnbull  v.  Rivers,  3  Mc-  Mitchell   v.   Seipel,   53  Md.  251. 

Cord    (S.    C.)       131;    Fitchett    v.  98.     Gaylord  y.  Mtoffat,  L.  R.  4 

Mellow,   29    OM.   Rep.    6,— it   was  Ch.  App.  133. 

decided  that  no  such  right  of  way  99.     Camp    v.    Whitman,    51    N. 

existed,    when    there    was    access  J.  Eq.  467  26  Atl.  917. 

by    water,    it    being    left,    in    the  i.     in  Myers  v.  Dunn,  49  Conn, 

second  of  the  cases  cited,  to  the  71   it   was   decided   that  although 

jury  to   say   whether   the   access  thre  was  an  express  grant  of  a 

by    water    was    "available".     See  right    of    way    for    carting    wood 

also  Staples  v.  Cornwall  114  App.  from   the   land,   a  residence   hav- 

Div.  596,  99  N  Y  Supp.  1009.  ing     subsequently    been     erected 

97.     Wlhittier  v.  Winkley,  62  N.  thereon,  there  was  a  way  of  ne- 

H.    338;     Camp    v.    Whitman,    51  cessity    thereto    for    general    i>ur- 

N.  J.  Eq.  467,  26  Atl.  917,  discuss-  poses, 

ing     Corporation     of     London     v.  2.     Whittier  v.  Winkley,  62  N. 


§  364]  Easements.  1309 

The  grantor  or  grantee  of  land  obvionsly  cannot, 
by  the  subsequent  erection  of  obstacles  to  access  to  the 
land,  create  a  necessity  for  this  purpose  which  did  not 
exist  at  the  time  of  the  severance  of  ownership,^  nor 
can  he  create  such  a  necessity  by  such  subdivision  of 
his  property  as  he  may  subsequently  make  on  the 
sale  thereof.^^ 

That  the  grantee  of  land,  being  a  municipality  or 
subdivision  of  a  state,  has  the  right  to  obtain  land  for 
a  road  b}^  condemnation  proceedings  does  not  pre- 
clude it  from  claiming  a  way  of  necessity.^*^ 

§  364.  Prescription.  An  easement  may  be  acquired 
by  the  adverse  user  of  another's  land  for  a  certain 
period,  usually  the  same  as  that  required  to  give  title 
to  land  itself  by  disseisin  or  adverse  possession.  The 
acquisition  of  an  easement  in  this  manner  is  termed 
''prescription,"  and  is  based  on  tlie  theory  that  if  one 
makes  use  of  another's  land,  not  by  permission,  and 
the  owner  fails  to  interfere  to  prevent  such  use,  such 
acquiescence  is,  in  order  to  prevent  litigation,  and  also 
to  obviate  the  difficulty  of  yiroving  title  after  lapse  of 
time,  to  be  considered  as  conclusive  evidence  that  the 
user  is  rightful.  The  subject  of  prescription  will  l)e 
considered  in  another  part  of  this  work.* 

H.   338,  disapproving  Gorpoiation  of   access    was   available   for   gen- 

of  London   v.   Riggs,   13   Ch.   Div.  eral  purposes  to  meet  the  requiro- 

798;  Grotty  v.  New  River  &  Poca-  ments  of  the  uses   to  which   the 

hontas    Consol.    Coal    Co..    72    W.  plaintiff's  property  would  natural- 

Va.    68,   78    S.    E.    233.     Compare  ly  be  put. 

Higbee   Fishing   Club   v.   Atlantic  3.     Mitchell    v.    Seipel,    53    Md. 

Electric  Co.,  78  N.  J.  Eq.  434,  71)  251. 

Atl.  326.  3a.     Lankin    v.    Terwilliger,    22 

In  Foeffees  of  Grammar  School  Ore.    97,    29    Pac.    268;    U.    S.    v. 

in  Ipswich  v.  Proprietors  of  Jef-  Rindge,    208    Fed.    611. 

frey's    Neck    Pasture,    174    Mass.  3b.     Board  of  Sup'rs  of  Lamar 

572,   it   was   said   that  the   exist-  County  v.   Elliott,   107   Miss.  368. 

ence  of  a  way  of  necessity  was  f!6  So.  203. 

to  be  determined  by  the  consid-  4.    Post,  §§-514-533. 
eration   whether  any  other  mode 
2  R.  P.— 8 


1310  Real  Pkoperty.  [§  365 

§  365.  Acquisition  under  statute.  An  easement 
may,  by  force  of  a  particnlar  statute,  be  acquired  in 
the  land  of  anotlier  for  a  public  use,  by  proceedings 
under  the  power  of  eminent  domain,  and  payment  of 
adequate  compensation.  The  most  prominent  instances 
of  easements  so  acquired  are  the  right  of  way  privilege 
acquired  by  a  railroad  company  through  the  land  of  an 
individual,^  and  the  privilege  of  the  owner  of  land  on  a 
watercourse,  under  what  are  known  as  the  ''Mill  Acts," 
of  flooding  the  land  of  another  by  the  erection  of  a  dam 
for  manufacturing  or  milling  purposes.®  In  some  states 
the  statute  provides  for  the  acquisition,  by  a  company 
formed  for  irrigation  purposes,  of  the  privilege  of 
constructing  canals,  aqueducts,  or  reservoirs  on  the 
land  of  individuals,'^  and  a  somewhat  similar  pri\dlege 
is  frequentlj^  given  by  statute  to  local  associations 
formed  to  construct  canals  and  ditches  for  the  drainage 
and  reclamation  of  marshy  districts.^  Another  instance 
of  an  easement  created  by  statute  is  the  obligation,  im- 
posed by  statute  in  some  states,  to  contribute  to  the 
erection  and  maintenance  of  a  partition  fence.*^'^*^ 

As  to  party  walls.  In  the  absence  of  a  statu- 
tory provision  in  this  regard,  or  of  the  grant  of   an 

5.  1  Lewis,  Eminent  Domain,  it  is  decided  that  a  landowner's 
§§  263,  449,  584;  3  Elliott,  Rail-  right  to  have  cattleguards  main- 
roads,  §  950  ct  scq.  tained   by  a  railway   company   is 

6.  Gould,  Waters,  §§  253,  579  a  "statutory  easement,"  and  that 
et  seq.;  anfe  §  339e.  consequently  a  release  thereof  by. 

7.  1  Lewis,  Eminent  Domain,  him  is  binding  on  his  successor 
§  308;  Fallbrook  Irrigation  Dist.  in  title.  Such  a  view  would  prob- 
V.  Bradley,  164  U.  S.  112;  Oury  ably  not  be  accepted  by  all 
V.    Goodwin    (Ariz.)    26   Pac.   376;  courts. 

In  re  Madera  Irrigation  Dist.,  92  8.     Lindsay    Irrigation    Co.    v. 

Cal.    309,    27    Am.    St.    Rep.    106;  Mehrtens,    97    Cal.    676;    NefE    v. 

Paxton  &  H.  Irrigating  Canal  &  Reed,    98     Ind.    341;     Norfleet    v. 

Land  Co.  v.  Farmers  &  Merchants  Cromwell,   70   N.    C.   634,    16   Am. 

Irrigation  &  Land  Co.,  45  Neb.  884,  Rep.  787;  Tidewater  Co.  v.  Coster, 

50  Am.  St.  Rep.  585.  18   N.   J.   Eq.   518. 

In  Gulf  &  S.  I.  R.  Co.  V.  Chap-  9-10.     See  ante,  §  357. 
man,    102   Miss.    778,    59    So.    889, 


§  3G5]  Easements.  1311 

easement  to  tliat  effect,  one  of  two  adjoining  owners 
cannot  place  a  wall  wholly  or  in  part  on  the  other's 
land.  In  several  states,  however,  there  are  statutes  in 
this  regard,  usually  to  the  effect  that  one  owner  may 
place  a  wall  to  a  certain  extent  upon  the  adjoining 
owner's  land,  which  wall  the  other  will  have  the  right 
to  use  upon  payment  of  half  the  cost.^^ 

A  wall  is  not  such  as  is  contemplated  by  the 
statute,  it  has  been  decided,  unless  it  is  susceptible  of 
user  as  a  party  wall,^-  and  it  has  on  this  theory  been 
decided  that  the  wall  cannot  have  openings,  such  as 
windows,  therein. ^^  That  is,  though  the  wall  belongs, 
when  built,  to  the  projorietor  who  builds  it,  until  the 
other  pays  his  proportion  of  the  costs, ^^  he  has  no  right, 
under  the  statute,  to  build  in  part  on  the  other's  land 
any  but  a  solid  wall. 

A  wall  erected  by  one  proprietor  has  been  regarded 
as  a  party  wall  for  the  purpose  of  the  statute,  so  as 
to  give  the  adjoining  owner  certain  rights  therein,  if  its 
foundation  is  jDartly  on  the  latter 's  land,  even  though 

11.  A    statute    providing    that      C.   480;    Robinson  v.  Hillman,   36 
one  may  erect  a  wall  in  part  up-      App.  D.  C.  576. 

on     the     land     of     an     adjoining  13.     Smoot  v.  Heyl,  34  App.  D. 

owner,  to  be  used  by  both  as   a  C.  480;  Kiefer  v.  Dickson,  41  Ind. 

party  wall,   has  been  held  to   be  App.    543,    84    N.    E.    523;    Traute 

unconstitutional  in  Massachusetts.  v.    White,    46    N.    J.    Eq.    437,    19 

Wilkins  v.   Jewett,  139  Mass.   29.  Atl.  196;    Sullivan  v.  Graffort,  35 

And   there   are  dictia   to   that   ef-  Iowa,   531;    Vollmer's  Appeal,   61 

feet   in    New   Jersey.     Traute   v.  Pa.   118.     Contra,  Jeannin   v.   De 

White,   46   N.   J.    Eq.   437,   19  Atl.  Blance,  11  La.  Ana.  465;  Pierce  v. 

196;    Schmidt   v.  Lewis,   63   N.   J.  Lemon,  2  Houst.   (Del.)    519. 

Eq.  565,  52  Atl.  707.    That  such  a  The     Iowa     statute     authorizes 

statute  is  valid,  see  Swift  v.  Cal-  openings  to  be  made  upon  taking 

nan,   102   Iowa,   206,   37   L.   R.  A.  measures    to    protect    the    other 

462,  63  Am  St.  Rep.  443,  71  N.  W.  proprietor.       See     Shoemaker     v. 

233;    Evans  v.  Jayne,  23  Pa.  34;  Wallace,    154    Iowa,    236,    134    N. 

Heron  v.  Houston,  217  Pa.  1,  118  W.  740. 

Am.    St.    Rep.    898,    66    Atl.    108;  14.     Jeannin   v.   De   Blance,   11 

Hunt  V.   Ambuston,   17   N.   J.   Eq.  La.    Ann.    465;    Cordill    v.    Israel, 

208.  130  La.  138,  57  So.  778;   Bertram 

12.  Smoot  V.  Heyl,  34  App.  D.  v.  Curtis,  31  Iowa,  46. 


1312  Real  Peoperty.  [§  365 

the  part  of  the  wall  above  the  ground  is  wholly  within 
the  limits  of  the  land  belonging  to  the  builder.^ ^  When, 
however,  the  wall  was  not  intended  to  encroach  upon 
the  other's  land,  but  did  so  by  accident  and  to  but 
a  slight  extent,  and  there  was  nothing  to  indicate  that 
it  was  intended  to  be  used  as  a  party  wall,  such  other 
was  considered  to  have  no  rights  therein,  though  he 
could  insist  that  the  encroaching  part  should  be  re- 
moved.''' Even  a  wall  erected  entirely  on  one's  ovni 
land  may,  it  appears,  under  the  Pennsylvania  statute, 
be  a  party  wall  for  the  purposes  of  the  adjoining  owner 
if  it  was  so  intended  by  the  one  erecting  it.^" 

The  privilege,  under  the  statute,  of  erecting  a  wall 
partly  on  the  adjoining  land  for  the  use  of  both  pro- 
prietors has  been  held  to  override  the  privilege  of  the 
adjoining  owner  of  erecting  a  wall  on  his  own  land  for 
his  exclusive  use,  and  a  wall  of  the  latter  character  may 
be  destroyed  if  this  is  necessary  for  the  purpose  of 
erecting  a  wall  of  the  former  character.^^ 

There  has  been  held  to  be  a  user  by  one  pro- 
prietor of  a  wall  erected  by  the  other,  so  as  to  make  the 
former  liable  under  the  statute  for  part  of  the  cost, 
when  he  utilized  the  wall  as  one  side  of  a  permanent 
frame  building  erected  by  him,  though  he  did  not  use 
the  wall  for  purposes  of  support, ^'^  while  the  erection 
of  a  merely  temporary  shed  against  the  wall  was  held 

15.  Lukens  v.  Lasher,  202  Pa.       University    of    Pennsylvania,    220 
327,  51  Atl.   887;    Banner  v.   Cas-       Pa.  328,  89  Atl.  861. 

satt,  236  Pa.  248,   84  Atl.  780.    It  18.     Western    National     Bank's 

is    immaterial    that    the    wall    is  Appeal,    102    Pa.    171;    Mercantile 

on  the  adjoining  land  to  the  ex-  Library  Co.  v.  University  of  Penn- 

tent    of    less    than    one    half    its  sylvania,  220  Pa.  328,  89  Atl.  861; 

thickness.         Western       National  Heron  v.  Houston,  217  Pa.  1,  IIS 

Bank's  Appeal,  102  Pa.  171;  Kos-  Am.  St.  Rep.  898. 

ack    v.    Johnson,    38    App.    D.    C.  19.     Deere,  Wells  &  Co.  v.  Weir- 

62.  Shugart  Co.,  91  Iowa,  422,  59  N. 

16.  Pile  V.  Pedrick,  167  Pa.  296,  W.  255 ;  Pier  v.  Salot    (Iowa)  107 
46  Am.  St.  Rep.  677,  31  Atl.  646.  N.  W.   420. 

17.  Mercantile   Library   Co.   .v 


§  366] 


Easements. 


1313 


not  to  be  such  a  user.-^  The  erection  of  an  inferior 
wall  by  the  side  of  the  other  wall  has  also  been  de- 
cided not  to  involve  a  user  of  the  latter.-^ 

§  366.  Estoppel. (a)  By  reference  to  non  ex- 
istent way.  If  one,  in  conveying  land,  describes  it  as 
bounded  on  a  street  (or  other  highway)  which  is  in 
fact  nonexistent,  he  is,  as  against  his  grantee,  it  is  said, 
estopped  to  deny  the  existence  of  such  street,  the 
result  being  that  he  in  effect  grants,  in  so  far  as  he 
owns  the  land  covered  by  the  supposed  street,  a  right  of 
way  along  the  route  thereof  for  the  purpose  of  access 
to  the  land  conveyed,-^  and  also  easements  of  light  and 
air  such  as  the  grantee  would  have  had  were  the  street 
actually  existent.^^     Likewise  if  land  conveved   is   de- 


20.  Beggs  V.  Duling,  102  Iowa, 
13.  70  N.  W.  732.  As  to  what 
constitutes  a  new  use  of  a  new 
wall  erected  in  place  of  an  old 
one,  so  as  to  impose  liability 
under  the  statute,  see  Hoffstott 
V.  Voigt,  146  Pa.  632,  23  Atl.  351; 
German  Nat.  Bank  v.  Mellor,  238 
Pa.  415,  86  Atl.  415. 

21.  Sheldon  Bank  v.  Royce,  84 
Iowa,  288,  50  N.  W.  986. 

22.  Teasley  v.  Stanton,  136 
Ala.  641,  96  Am.  St.  Rep.  88,  33 
So.  823;  Rogers  v.  Ballinger,  59 
Ark.  12,  26  S.  W.  12;  Petitpierre 
V.  Maguire,  155  Cal.  242,  100  Pac. 
690;  Billings  v.  Mckenzie,  87 
Conn.  617,  89  Atl.  344;  Poole  v. 
Greer,  6  Del.  220,  65  Atl.  767; 
Schreck  v.  Blum,  131  Ga.  489,  62 
S.  E.  705;  Young  v.  Braman,  105 
Me.  494,  75  Atl.  120;  O'Linda  v. 
Lathrop,  21  Pick.  (Mass.)  292; 
Driscoll  V.  Smith,  184  Mass.  221, 
68  N.  E.  210;  Dawson  v.  St.  Paul 
F.  &  M.  Ins.  Co.,  15  Minn.  136,  2 


Am.  Rep.  109;  Plumer  v.  John- 
ston, 63  Mich.  65,  29  N.  W.  687; 
Crosby  v.  Greenville,  —  Mich.  — , 
150  N.  W.  246;  Moses  v.  St.  Louis 
Sectional  Dock  Co.,  84  Mo.  242; 
Lindsay  v.  Jones,  21  Nev.  72; 
White  V.  Tidewater  Oil  Co.,  50  N. 
J.  Eq.  1;  Imperial  Realty  Co.  v. 
West  Jersey  &  S. .  R.  Co.,  78  N. 
J.  Eq.  110,  77  Atl.  1041;  United 
N.  J.  Railway  &  Canal  Co.  v.  Cru- 
cible Steel  Co.,  86  N.  J.  Eq.  258, 
98  Atl.  1087,  affirming  85  N.  J. 
Eq.  7,  95  Atl.  243;  White's  Bank 
V.  Nichols,  64  N.  Y.  65;  Niagara 
Falls  V.  New  York  Cent.  &  H.  R. 
R.  Co.,  168  N.  Y.  610,  61  N.  E. 
185;  Weeks  v.  New  York  W.  &  B. 
Ry.  Co.,  207  N.  Y.  190,  100  N.  E. 
719;  Ott  V.  Kreiter,  110  Pa.  St. 
370,  1  Atl.  724;  Shelter  v.  Welzel, 
242  Pa.  355,  89  Atl.  455;  Gish  v. 
Roanoke,  119  Va.  519,  89  S.  E. 
970;  Espley  v.  Wilkes,  L.  R.  7 
Exch.  298. 

23.     Trowbridge  v.   Ehrich,   191 


1314 


Eeal  Property. 


[§  366 


scribed  as  bounded,  not  by  a  street  or  other  highway, 
but  by  a  j^rivate  alley  or  passageway,  the  grantor  is  said 
to  be  estopped,  as  against  the  grantee,  to  deny  that 
such  an  alley  or  passageway  exists,  that  is,  he  grants  to 
that  extent  a  right  of  way  appurtenant  to  the  land 
conveyed.-^  And  it  has  been  decided  that  if  the  con- 
veyance bounds  the  land  on  a  way  which  is  actually 
laid  out,  the  grantee  acquires  a  right  of  passage  for 
the  whole  length  of  such  way,  so  far  as  it  is  upon  the 
grantor's  land,  and  not  merely  for  the  length  of  the 
boundary  of  the  land  conveyed.-^ 

While  a  reference  to  a  non  existing  street  or  way 
as  a  boundary  has  thus  ordinarily  been  regarded  as 
involving  the  grant  of  a  right  of  way,  a  different  view 


N.  Y.  361,  84  N.  E.  297;  Dill  v. 
Board  of  Education  of  City  of 
Camden,  47  N.  J.  Eq.  421,  10  L. 
R.  A.  276,  20  Atl.  739;  Fitzgerald 
V.  Barbour,  55  Fed.  440,  5  C.  C. 
A.  180. 

24.  Garstang  v.  Davenport,  90 
Iowa,  359,  57  N.  W.  876;  Riley  v. 
Stein,  50  Kan.  591,  32  Pac.  947; 
Reccus  V.  Weber,  142  Ky.  157,  134 
S.  W.  145;  Young  v.  Braman,  105 
Me.  494,  75  Atl.  120;  Fox  v. 
Union  Sugar  Refinery,  109  Mass. 
292;  McKenzie  v.  Gleason,  184 
Mass.  452,  100  Am.  St.  Rep. 
566,  69  N.  E.  1076;  Gould  v. 
Wagner,  196  Mass.  276,  82  N. 
E.  10;  Flagg  v.  Phillips,  201 
Mass.  216,  87  N.  B.  598;  Carlin 
V.  Paul,  11  Mo.  32,  47  Am.  Dec. 
139;  Cox  V.  James,  45  N.  Y.  557; 
Hennessy  v.  Murdoch,  137  N.  Y. 
317,  33  N.  B.  330;  Rhoads  v. 
Walter,  61  Pa.  Super.  Ct.  43.  But 
see  Milliken  v.  Denny,  135  N.  C. 
19,  47  S.  E.  132. 
The  fact  that  land  is  bounded 


by  a  privatQ  passageway  does 
not,  it  has  been  decided,  give 
any  rights  of  light  and  air  as 
regards  the  space  occupied  by 
such  way,  except  in  so  far  as 
required  for  the  purposes  of  pas- 
sage. Bitello  V.  Lipson,  80  Conn. 
497,  16  L.  R.  A.  (N.  S.)  193,  125 
Am.  St.  Rep.  126,  69  Atl.  21.  And 
a  description  of  the  land  con- 
veyed as  bounded  on  an  "open 
court"  was  held  to  give  no  ease- 
ments of  light  and  air  which 
would  prevent  the  erection  of  a 
building  on  the  court.  Lipsky  v. 
Heller,  199  Mass.  310,  85  N.  B. 
453. 

25.  Thomas  v.  Poole,  7  Gray. 
(Mass.)  83;  Rodgers  v.  Parker, 
9  Gray  (Mass.)  445;  Ralph  v. 
Clifford,  224  Mass.  58,  112  N.  E. 
482;  Tobey  v.  Taunton,  119  Mass. 
404;  McConnell  v.  Rathbun,  46 
Mich.  303,  9  N.  W.  426;  Schreck 
v.  Blun,  131  Ga.  489,  62  S.  E. 
705.  Compare  Langmaid  v.  Hig- 
gins,  129  Mass.  353. 


§  366]  Easements.  1315 

has  been  adopted  when  the  land  was  in  terms  bounded 
on  the  side  line  of  the  street  or  way,-*^  when  the  street 
or  way  was  referred  to  merely  for  the  purpose  of  loca- 
ting the  starting  point  of  the  description,  and  the  land 
was  described  by  courses  and  distances,  although  one  of 
the  courses  happened  to  correspond  with  the  side  line  of 
such  street  or  way,-'  and  when  the  land  was  bounded 
on  a  "continuation"  of  a  supposed  street.^*^  And  gen- 
eralh^  the  particular  language  used,  or  the  circumstances 
of  the  case,  may  be  referred  to  for  the  purpose  of  show- 
ing that  there  was  no  intention,  in  bounding  the  land 
on  a  non-existent  street  or  way,  to  give  any  easement 
in  the  land  retained.-^ 

One  thus  acquiring  an  easement  by  a  grant  to  liim 
of  land  as  bounded  by  a  street  which  is  nonexistent 
has  the  right  to  have  the  supposed  street  kept  open 
to  its  full  width,  as  indicated  on  a  plat  referred  to  or 
otherwise.^'' 

In  so  far  as  one  who  has  conveyed  land  as  bounded 
on  a  street  or  way  which  is  in  fact  nonexistent  is  pre- 

26.  McKenzie  v.  Gleason,  184  58  N.  Y.  Supp.  163;  Neely  v. 
Mass.  452,  100  Am.  St.  Rep.  566,  Philadelphia,  212  Pa.  551,  61  Atl. 
69  N.   E.   1076.  1096. 

27.  Lankiu  v.  Terwilliger,  22  30.  Fitzgerald  v.  Barbour,  55 
Ore.  97,  29  Pac.  268;  Talbert  v.  Fed.  440,  5  C.  C.  A.  180;  White 
Mason,  136  Iowa,  373,  113  N.  W.  v.  Tidewater  Oil  Co.,  50  N.  J. 
918  {dictum);  Pierpoint  v.  Har-  Eq.  1,  25  Atl.  199;  Livingston  v. 
risville,  9  W.  Va.  215  {semhle).  New  York,  8  Wend.  (N.  Y.)  85,  22 
And    see    Neely    v.    Philadelphia.  Am.  Dec.  622. 

212  Pa.  551,  61  Atl.  1096.  That     a     conveyance     of     land 

28.  Atwood  V.  O'Brien,  80  Me.  bounds  it  on  a  non  existent  street 
447,  15  Atl.  44.  But  see  Teasley  does  not  impose  any  obligation 
V.  Stanton,  136  Ala.  641,  96  Am.  on  the  grantor  to  make  a  streei 
St.  Rep.  88,  33  So.  823.  or    way    accordingly,    which    will 

29.  Pitts  V.  Baltimore,  73  Md.  be  fit  for  travel.  Loring  v. 
326,  21  Atl.  52;  Bushman  v.  Gib-  Otis,  7  Gray  (Mass.)  563;  Hen- 
son,  15  Neb.  676,  20  N.  W.  106,  nessey  v.  Old  Colony  &  N.  R.  Co., 
289;  Hopkinson  v.  McKnight,  31  101  Mass.  540,  100  Am.  Dec.  127; 
N.  J.  Law  422;  King  v.  New  Durkin  v.  Cobleigh,  156  Mass.  108, 
York,  102  N.  Y.  171.  6  N.  E.  395;  17  L.  R.  A.  270,  32  Am.  St.  Rep. 
Re  Brook  Ave.,  40  App.  Div.  519.  436,  30  N.  E.  474. 


1316 


Eeal  Property. 


[§  366 


chicled  from  denying  the  existence  of  an  easement  in 
favor  of  his  grantee  on  the  land  retained  by  him, 
one  to  whom  he  subsequently  conveys  the  latter  land  is 
also  so  precluded,^^  but  not  one  claiming  under  title 
paramount,  as  for  instance  at  a  sale  under  a  prior 
mortgage.^^ 

One  can  obviously  not  create  an  easement  by  de- 
scribing the  land  conveyed  as  bounded  by  a  street  or 
wa}',  if  he  does  not  own  the  land  on  w^hicli  the  street  or 
way  is  supposed  to  be  located,  that  is,  he  cannot  thus 
create  a  right  of  way  over  another's  land.^^  And  it  has 
been  decided  that  such  a  reference  to  a  nonexistent 
street  or  way  does  not,  merely  because  it  cannot  operate 
as  creating  a  way,  take  effect  as  a  covenant  as  to  the 
existence  of  the  street  or  way,  for  breach  of  which  dam- 
ages may  be  claimed.^*  The  statement  not  infrequently 
found  in  the  cases,^^^  that  the  reference  to  a  street  in- 
volves an  ''implied  covenant"  on  the  part  of  the  gran- 
tor that  there  is  such  a  street,  appears  ordinarily  to 


31.  Fitzgerald  v.  Barbour,  55 
Fed.  440,  5  C.  C.  A.  180;  Thomas 
V.  Poole,  7  Gray  (Mass.)  83; 
Rogers  v.  Ballinger,  59  Ark.  12, 
26  S.  W.  12;  Cox  v.  James,  45 
N.  Y.  557;  Sbetter  v.  Welzel,  242 
Pa.  355,  89  Atl.  455.  Contra  Briz- 
zalaro  v.   Senour,  82  Ky.  353. 

32.  See  Tuttle  v.  Sowadzki,  41 
Utah,   501,   126   Pac.   959. 

That  a  subsequent  grantee  ot 
part  of  the  land,  away  from  the 
asserted  street,  cannot  assert  the 
existence  of  the  way,  see  Dawson 
V.  S.  Paul  Fire  &  Marine  Insur. 
Co.,  15  Minn.  136,  2  Am.  Rep. 
139. 

33.  Dorman  v.  Bates  Manuf'g 
Co.,  82  Me.  438,  19  Atl.  915;  Cole 
\.  Hadley,  162  Mass.  579,  39  N. 
E.   279. 


34.  Wimpey  v.  Smart,  137  Ga. 
325,  73  S.  E.  586;  Howe  v.  Alger, 
4  Allen  (Mass.)  206;  Fulmar  v. 
Bates,  118  Tenn.  731,  10  L.  R.  A. 
(N.  S.)  964,  121  Am.  St.  Rep.  1059, 
102  S.  W.  900.  Contra,  Trutt  v. 
Spott,  87  Pa.,  339;.  Talbert  v. 
Mason,  136  Iowa.  373,  14  L.  R. 
A.  (N.  S.)  878,  113  N.  W.  918 
(semble). 

34a.  See  e.  g.  Rogers  v.  Bel- 
linger, 59  Ark.  12,  26  S.  W.  12; 
Haynes  v.  Thomas,  7  Ind.  38. 
White  V.  Flannigan,  1  Md.  525, 
54  Am.  Dec.  668;  Tufts  v.  Charles- 
town,  2  Gray  (Mass.)  272;  Mosi?s 
V.  St.  Louis  Sectional  Dock  Co., 
84  Mo.  242:  Greenwood  v.  Wilton 
R.  R.,  23  N.  H.  261;  Bellinger  v. 
Union  Burial  Ground  Soc,  10  Pa. 
135. 


^  366]  Easements.  1317 

mean  merely  that  he  is  precluded  from  denying  the 
existence  of  the  street. 

There  are  quite  occasional  decisions  and  dicta  to 
the  effect  that  if  one  conveys  land  as  abutting  on  a 
legally  existent  highway,  the  fee  of  "hieh  he  owns,  and 
the  highway  is  subsequently  discontinued,  the  grantee 
still  has  a  right  of  passage  where  the  highway  previously 
existed,  which  cannot  be  obstructed  by  the  grantor  or 
one  claiming  under  him.-'^  This  view  involves  the  as- 
sumption that  the  description  in  a  conveyance  of  land 
as  abutting  on  a  highway  has  the  effect  of  creating  a 
private  right  of  way,  irrespective  of  whether  the  high- 
way does  or  does  not  exist. 

While  the  courts,  as  above  stated,  in  deciding  that 
the  grantee  of  land  may  acquire  an  easement  in  the 
grantor's  adjoining  land  by  reason  of  the  fact  that  the 
conveyance  bounds  the  land  on  a  nonexistent  street  or 
way,  base  this  in  terms  on  the  ground  of  estoppel,  they 
give  practically  no  satisfaction  as  reg^ards  the  character 
and  theoretical  basis  of  the  estoppel.  If  they  regard 
it  as  a  case  of  estoppel  by  deed,  that  is,  if  they  mean 
that  the  grantor  having,  in  a  formal  conveyance,  referred 
to  a  street  as  existing  on  his  land  in  a  particular  lo- 
cation, he  is  estopped  to  deny  that  it  does  so  exist,"'" 
the  fact  that  the  grantee  knows  that  the  street  does  not 
exist  would  presumably  be  immaterial,  as  would  the 
fact  that  the  conveyance  is  by  way  of  gift."'^    The  courts, 

35.     Bayard  v.  Hargrove,  45  Ga.  County,    36    Utah,    127,    104    Pac. 

342;     Leffler     v.     Burlington.,     18  "Wlash.   691,  1^.  R.  A.  1917A,  1120, 

Iowa,  361.  Parker  v.  Farminghani,  159   Pac.    891;    Central   Trust   Co. 

1047;       Dobson      v.      Hohenadel,  v.  Ifennen,  90  Fed.   593,  33   C.   C. 

148    Pa.     St.    367,    23    Atl.    1128.  A.  189.     Rut  see  Kimball  v.  Ken- 

Shetter  v.  Welzel,  242  Pa    St.  355,  osha,  4  Wis.   321. 
111.   Van   Buren   v.   Trumbull,   92  36.     It  is  reforrei  to  as  a  case 

8    Mete.    (Mass.)    260;    Plumer    v.  of  estoppel  by  deed  in  Billings  v. 

Johnston,  63  Mich.  165,  29  N.  W.  McKenzie,   87    Conn.   617,    89   Atl. 

687;   White's  Bank  v.  Nichols,  64  344;    Shetter    v.    Welzel,    242    Pa. 

N.  Y.  65;  Holloway  v.  Southmayd,  355,  89  Atl.  455;   Bigelow,  Estnp- 

139      N.      Y.      390,      34      N.      E.  pel   (6th  Ed.)  403. 
89  Atl.  455;  Sowadski  v.  Salt  Lake  37.     That  the  fact  that  the  con- 


1318  Real  Peopertt.  [§  366 

however,  occasionally  refer  to  the  probability  that  the 
supposed  existence  of  the  street  constituted  part  of 
the  consideration  which  induced  the  purchase,  and  from 
this  point  of  view  the  estoppel  is  not  by  deed,  but  is  by 
representation,  and  the  fact  that  the  purchaser  was 
aware  of  the  facts  and  was  consequently  not  misled,  or 
that  the  conveyance  was  by  way  of  gift,  would  pre- 
vent the  estoppel  taking  eifect.-^^ 

If  the  grantee's  acquisition  of  the  easement  is  by 
reason  merely  of  the  fact  that  the  conveyance  purported 
to  bound  the  land  by  a  street,  without  reference  to 
whether  the  grantee  was  induced  to  suppose  that  a 
street  actually  exists,  the  rule  might  as  well  be  stated, 
it  seems,  without  reference  to  the  doctrine  of  estoppel. 
So  considered,  the  rule  appears  to  be  merely  one  of 
construction,  that  a  conveyance  of  land  as  bounding  on 
a  nonexistent  street  is  presumed,  if  no  such  street 
exists,  to  be  intended  to  vest  in  the  grantee,  as  appurte- 
nant to  such  land,  easements  of  passage  and  of  light  and 
air,  similar  to  those  which  he  would  have  acquired  had 
the  street  actually  existed.^^*  If  on  the  other  hand  the 
purchaser's  acquisition  of  the  easement  is  by  reason  of 
his  having  been  induced  to  believe  that  a  street  exists, 
without  reference  to  whether  the  grantor  intended  to 
create  such  an  easement  in  his  favor,  the  rule  is,  it 
seems,  properly  expressed  in  terms  of  estoppel,  and  the 
language  of  the  conveyance  in  reference  to  the  street 
would  appear  to  be  material  only  as  raising  a  presump- 
tion that  similar  language  was  used  by  the  vendor  in  the 
negotiations  which  preceded  the  conveyance.  So  far 
as   estoppel  by   representation   is   concerned,   the   fact 

veyance  is  by  way  of  gift  is  im-  material  in  Kenyou  v.  Hookway, 

m.atenal  see  Flersheim  v.  City  of  17  N.  Y.  Misc.  452,  41  N.  Y.  Supp. 

Baltimore,    85    Md.    489,    36    Atl.  230.    A  contrary  view  is  taken  iu 

1098.  Bushman  v.  Gibson,  15  Neb.  676, 

38.     That  the  grantor  had  pre-  20   N.   W.   106,   289. 

viously  told  the  grantee  that  he  38a.    Post,    this     section,    note 

did  not  intend  to  give  him  such  54a. 
an  easement  was  regarded  as  im- 


§  366]  Easements.  1319 

that  the  conveyance  bounds  the  land  by  a  street  is 
immaterial  if  the  purchaser  has  been  expressly  told,  or 
has  reason  to  believe,  that  no  such  street  exists.  The 
same  considerations  apply  in  the  case  of  a  reference  to 
a  private  passage  way  as  a  boundary.  If  the  language 
of  the  instrument  operates  to  create  an  easement  in  the 
grantee,  irrespective  of  whether  the  grantee  was  induced 
to  believe  in  the  existence  of  the  passage  way,  the 
easement  is  created  by  the  lang-uage  of  the  conveyance, 
and  the  introduction  of  the  doctrine  of  estoppel  is  un- 
necessary, while  if  the  instrument  creates  an  easement 
in  the  grantee  merely  because  it  indieatos  that  the 
grantee  was  induced  to  purchased  in  the  belief  that  the 
passage  way  existed,  the  easement  is  properly  said  to 
be  created  by  estoppel. 

(b)     By   reference   to   plat.     It   is  frequently 


stated  that  if  one  sells  land,  or  conveys  it,  with  refer- 
ence to  a  plat,  on  .which  plat  appear  streets,  squares, 
quays,  or  the  like,  the  plat  is  in  effect  made  a  part  of 
the  transaction  of  sale  or  conveyance,  with  the  result 
that  the  vendee  or  grantee  acquires  a  right  to  insist 
that,  in  so  far  as  the  property  belongs  to  the  vendor 
or  grantor,  the  parts  designated  on  the  plat  as  streets, 
squares,  quays  or  the  like,  shall  continue  to  be  de- 
voted to  such  public  use  free  from  interference  by  tli(> 
grantor  or  one  claiming  under  him.^^     The  cases  ordi- 

39.  Danielson  v.  Sykes,  157  Cal  311,  37  N.  E.  850;  Fisher  v.  Beard, 
689,  109  Pac.  87,  28  L.  R.  A.  32  Iowa,  346;  Cleaver  v.  Man- 
(N.  S.)  1024;  Pierce  v.  Roberts,  hanke,  120  I-owa,  77,  94  N.  W. 
57  Conn.  31,  17  Atl.  275;  Fisk  v.  279;  Rowan's  Excrs.  v.  Portland, 
Ley,  76  Conn.  295,  56  Atl.  559;  8  B.  Mon.  (47  Ky.)  232;  Mem- 
East  Atlanta  Land  Co.  v.  Mower,  phis  &  St.  L.  Packet  Co.  v.  Grey, 
138  Ga.  380,  75  S.  E.  418;  May-  9  Bush  (72  Ky.)  13;  Bartlett  v. 
wood  Co.  V.  Village  of  Maywood,  City  of  Bangor,  67  Me.  460;  Burn- 
118  111.  61,  6  N.  E.  866;  Swedish  ham  v.  Mahoney,  222  Mass.  524, 
Evangelist  Lutheran  Church  v.  Ill  N.  E.  396.  Ilorton  v.  Williams, 
Jackson,  229  111.  506,  82  N.  E.  99  Mich.  423;  Lennig  v.  Ocean  City 
348;  Field  v.  Barling,  149  111.  556,  Ass'n  41  N.  J.  Eq.  606.  56  Am. 
24  L.  R.  A.   406,  41  Am.   St.  Rep.  Rep.  16,  7  All.  491;    Dill  v.  Board 


1320  Keal  Pkoperty.  [§  366 

narily  refer  to  this  as  arising  from  a  sale  according  to  a 
plat  rather  than  from  a  conveyance  according  to  a  plat, 
but  when  the  sale  is  according  to  a  plat  the  conveyance 
by  which  the  sale  is  consummated  is  usually  according 
to  the  same  plat,  and  it  may  be  questioned  whether,  when 
the  courts  refer  to  a  sale  according  to  a  plat,  they  do 
not  usually  have  in  mind  such  a  sale  followed  by  a  simi- 
lar conveyance.  As  is  subsequently  indicated,^°  whether 
a  sale  according  to  a  plat,  that  is,  a  reference  to  a  plat 
in  connection  with  the  negotiations  for  a  sale,  will  have 
the  same  effect  in  this  regard  as  such  a  reference  in- 
corporated in  the  instrument  of  conveyance  of  the  land, 
has  been  questioned. 

In  some  cases,"* ^  in  giving  this  effect  to  a  conveyance 
according  to  a  plat,  language  is  used  by  the  court  indi- 
cative of  the  view  that  this  result  is  attained  by  an  ap- 
plication of  the  same  principle  which  operates  to  pre- 
clude one  who  conveys  land  as  bounded  on  a  street  or 
way  from  denying  the  existence  of  the  street  or  way,  and 
that  the  cases  are  exceedingly  analogous  appears  not  to 
be  open  to  question.  In  some  cases  the  view  is  asserted 
that  the  reference  to  the  plat  operates  to  vest  an  ease- 
ment in  the  grantee  as  inducing  him  to  believe  that  the 
streets  or  other  public  places  exist  as  indicated  on  the 
plat,^2  thus  in  etfect  applying  the  doctrine  of  estoppel 

of  Education  of  City  of  Camden,  (bridge).     Wilson     v.     Acree,     97 

47  N.  J.  Eq.  421,  10  L.  R.  A.  276,  Tenn.    378,    37    S.    W.    90;    Tuttle 

20    Atl.    739.    Bissell    v.    Railroad  v.    Sowadzki,    41    Utah,    501,    126 

Co.,    23    N.    Y.    61;     Hennessy    v.  Pac.   959. 

Mnrdock,        137        N.       Y.        317,  40.     /Vs/,    §    366(c),    note    54. 

33      N.      E.      330;       Buffalo      L.  41.     See  Booraem  v.  North  Hud- 

&    R.    Co.,    V.    Hoyer,    214    N.    Y.  son    R.    Co.,    40    X     J.    Eq.    557,    5 

236,    108    N.    E.    455;     Chapin    v.  Atl.    106.    Dodge   v.    Pennsylvania 

Brown,  15  R.  I.  579,  10  Atl.  639;  R.  Co.,  43  N.  J.  Eq.  351,  45  N.  J. 

Chambersburg    Shoe    Mfg.    Co.    v.  Eq.  366;  Wyman  v.  New  York,  11 

Cumberland  Valley  R.  Co.,  240  Pa.  Wend.     (N.    Y.)     486;     Bissell    v. 

519,    87    Atl.    968;    Oney    v.    West  N.   Y.   Cent.   R.   Co.,  23   N.   Y.   61; 

Buena    Vista    Land    Co.,    104    Va.  McCall  v.  Davis,  15  R.  I.  579. 

580,   2   L.   R.    A.    (N.    S.)    832.   113  42.     Presoott    v.    Edwards,    117 

Am.   St.    Rep.   1066,   52   S.   E.   343  Cal  298,  59  Am.  St.  Rep.  186;   May- 


§  366]  Easements.  1321 

by  representation.  Frequently  the  courts  refer  in  this 
connection  to  the  fact  that,  as  appears  to  be  agreed  in 
this  country,^^  a  sale  of  lots  with  reference  to  a  plat 
involves  a  dedication  to  public  use  by  the  vendor  of 
those  parts  indicated  on  the  plat  as  intended  to  be  so 
used,'**  apparently  regarding  this  as  the  basis  for  recog- 
nizing a  right  of  way  in  the  vendee.  But  this,  it  is  con- 
ceived, involves  a  misapplication  of  the  doctrine  of 
dedication.  The  existence  of  a  right  of  way  in  the 
vendee  by  reason  of  a  sale  to  him  by  reference  to  a  plat 
is  entirely  independent  of  whether  any  right  exists  in 
the  public.*^  For  instance,  although  the  public  authori- 
ties refuse  to  accept  the  dedication,  or  vacate  a  street 
appearing  on  a  plat,  so  that  the  dedication  of  the  street 
is  practically  a  nullity,  nevertheless  the  vendee's  rights 
remain  the  same  as  if  the  authorities  had  not  taken  such 
action.  That  the  right  of  the  A^endee  or  grantee  in 
such  case  is  not  dependent  on  the  doctrine  of  dedication 
is  apparent  upon  consideration  of  the  analogous  case  of 
a  private  right  of  way  appearing  on  the  plat  with  ref- 
erence to  which  the  sale  or  conveyance  is  made.  The 
doctrine  of  dedication  is  absolutely  inapplicable  in 
connection  with  a  private  way,  and  yet  the  vendee  or 

wood  Co.  V.  Village  of  May  wood,  110  Mo.  618,  19  S.  W.  735;  Hawley 

118  111.  61,  186,  49  Pac.  178;  Clark  v.  Baltimore,  33  Md.  270;   Carter 

V.  Elizabeth,  40  N.  .J.  L.  172;   Mc-  v.  Portland,  4  Ore.  339;  Dobson  v. 

Farland  v.  Linderkugel,  107  Wis.  Hohenaiel,    148    Pa.    367,    23    Atl. 

474,  83  i\.  W.  757.  McCall  v.  Davis,  1128. 

15  R.  I.  579;  Van  Buren  v.  Trum-  45.     See    Prescott    v.    PJd wards, 

bull,  92  Wash.  691,  L.  R.  A.  1917 A,  117  Cal.  298,  59  Am.  St.  Rep.  186; 

1120,  159  Pac.  891.  49  Pac.  178;    Danielson  v.  Sykes, 

43.  Post,  §  482.  157  Cal.   686,    109   Pac.   87,   28   L. 

44.  Highland  Realty  Co.  v.  R-  A.  (N.  S.)  1024;  Overland 
Avondale  Land  Co.,  174  Ala.  325,  Machinery  Co.  v.  Alpenfels,  30 
56  So.  716;  Harrison  v.  Augusta,  Colo.  163,  69  Pac.  574;  White  v. 
Factory,  73  Ga.  447;  I^gansport  Tidewater  Can.il  Co.,  50  N.  J.  Eq. 
V.  Dunn,  8  Ind.  38;  Schneider  v.  1,  25  Atl.  199;  Lennig  v.  Ocean 
Jacob,  86  Ky.  101,  5  S.  W.  350;  City  Ass'n,  41  N.  J.  Eq.  606,  .'it; 
Morton  v.  Williams,  99  Mich.  423,  Am.  Rep.  16,  7  Atl.  491;  Carroll 
58  N.  W.  369.  Heitz  v.  St.  Louis,  v.  Asbury,  28  Pa.  Super.  Ct.  354; 


1322 


Eeal  Peoperty. 


[§  36G 


grantee   in   such   case   ordinarily   acquires    a   right    of 
way.^^ 

The  authorities  are  not  entirely  harmonious  as  to 
whether  one  receiving  a  conveyance  of  land  described 
with  reference  to  a  plat  acquires  a  right  of  way  over, 
or  rather,  corresponding  to,  every  street  which,  though 
nonexistent,  appears  upon  the  plat.  Some  cases  are 
to  the  effect  that,  while  the  grantee  is  not  restricted  to 
such  supposed  streets  as  are  actually  adjacent  to  his 
land,  he  acquires  rights  only  in  such  as  are  reasonably 
necessary  for  convenient  access  to  and  exit  from  the 
land  conveyed,  and  that  the  grantor  is  not,  as  against 
him,  estopped  to  deny  the  actual  existence  of  streets  ap- 
pearing on  the  plat  which  he  would  not  ordinarily  have 
occasion  to  use  for  such  purpose,'*'^  while  some  recognize 
rights  in  the  grantee  along  the  routes  of  all  the  streets 
designated  on  the  plat.^^  Tn  one  or  two  states  the  rights 


Wolf  V.  Brass,  72  Tex.  133,  12  S. 
W.  159. 

46.  Smith  v.  Young,  160  111. 
1C3,  43  N.  E.  486;  Marshall  v. 
Lynch,  256  111.  522,  100  N.  E.  289; 
Kaatz  V.  Curtis,  215  Mass.  311, 
102  X.  E.  424;  Lowenberg  v. 
Brown,  79  N.  Y.  App.  Div.  414, 
79  N.  Y.  Supp.  lOGO  (semble). 

47.  Pearson  v.  .Allen  151 
Mass.  79,  21  Am.  St.  Rep.  426,  23 
N.  E.  731;  DoAvney  v.  Hood,  203 
Mass.  4,  89  N.  E.  24;  Bell  v. 
Todd,  51  Mich.  21,  16  N.  W.  304; 
State  V.  Hamilton,  109  Tenn.  276, 
70  S.  W.  619. 

Occasionally  the  view  has  been 
taken  that  while  the  grantee  may 
have  a  legal  right  as  to  all 
strips  designated  as  streets  on 
the  plat,  he  has  a  right  to  an 
injunction  only  as  to  those 
which  are  more  or  less  neces- 
sary   for    his    purposes.      Daniel- 


son  V.  Sykes,  157  Cal.  686,  28  L. 
R.  A.  (N.  S.)  1024,  109  Pac.  87; 
Thorpe  v.  Clanton,  9  Ariz.  351, 
85  Pac.  1061;  Chapin  v.  Brown, 
15  R.  I.  579,  10  Atl.  639. 

48.  Price  v.  Stratton,  45  Fla. 
535,  33  So.  644  (semble) ;  Indian- 
apolis V.  Kingsbury,  101  Ind.  200. 
51  Am.  Rep.  749;  Nagel  v.  Dean, 
94  Minn.  25,  101  N.  W.  954  (sem- 
ble) ;  Rowan  v.  Portland,  8  B. 
Mon.  232;  Bartlett  v.  Bangor,  67 
Me.  460;  Collins  v.  Land  Co.,  128 
N.  C.  563,  83  Am.  St.  Rep.  720, 
39  S..E.  21;  Jessop  v.  Kittaning 
Borough,  225  Pa.  583,  74  Atl.  553; 
Thaxter  v.  Turner,  17  R.  I.  799, 
24  Atl.  829;  Sipe  v.  Alley,  117 
Va.  819,  86  S.  E.  122;  Cook  v. 
Totten,  49  W.  Va.  177,  87  Am.  St. 
Rep.  792,  38  S.  E.  491;  Edwards 
V.  Moundsville  Land  Co.,  56  W. 
Va.  43,  48  S.  E.  754. 


§  366]  Easements.  1323 

of  the  grantee  are  said  to  be  limited  to  the  street  on 
which  his  land  purports  to  abut,  so  far  as  is  necessary 
in  order  to   reach  a  cross  street  in  either  direction.^'' 

In  so  far  as  the  vendee  thus  acquires  an  easement  in 
the  strips  designated  as  streets  on  the  plat  he  has,  it  ap- 
pears, the  right  to  have  them  kept  open  to  the  full  width 
indicated  on  the  plat.^^ 

It  has  occasionally  been  stated  that,  when  land  is 
sold  or  conveyed  according  to  a  plat,  the  grantee  ac- 
quires the  right,  not  only  to  use  the "  streets  appearing 
on  the  plat,  but  also  the  right  to  have  the  public  use 
them,^^  the  theory  being  that,  having  purchased  with 
this  expectation,  he  should  not  be  disappointed  therein. 
Such  a  ^'iew  is  not  entirely  satisfactory.  Assuming  that 
there  is  a  dedication  by  the  sale  or  conveyance,  the 
public  obviously  acquires  a  right  to  use  the  streets,  or 
strips  designated  as  streets,  because  in  that  case  they 
are  streets.  But  this  is  a  riglit  in  the  public,  not  in  the 
individual  grantee,  and  the  conception  of  an  easement, 
appurtenant  to  land,  to  have  the  members  of  the  public 
use  the  property  in  the  neighborhood  along  certain  de- 
signated routes,  not  for  the  purpose  of  access  to  such 
land,  but  for  tlieir  own  individual  x^urposes,  is  a  dif- 
ficult one.  Such  an  easement  in  one's  favor  would 
mean,  it  seems,  that  though  all  those  desiring  to  go 
to  or  from  his  land,  including  himself,  were  allowed  to 
use  these  designated  streets,  he  could  maintain  an 
action  because  other  persons  were  not  allowed  to  do  so. 
Even  when  the  streets  are  actually  existent,  it  does  not 
seem  that  an  abutting  owner  on  one  street  could  com- 
l)lain  because  tlie  public  generally  are  not  allowed  to 

49.  Reis  v.  City  of  New  York,  8  Wend.  (N.  Y.)  85,  22  Am.  Dec. 
188  N.  Y.  .58,  80  N.  E.  573;   Haw-       622. 

ley  V.  Baltimore,   33   Md.   270.  51.     Highland     Realty     Co.     v. 

50.  Molitor  v.  Sheldon,  37  Kan.  Avondale  Land  Co.,  174  Ala.  32<), 
246,  15  Pac.  231;  White  v.  Tide-  56  So.  716;  Earll  v.  City  of  Chi- 
water  Oil  Co.,  50  N.  J.  Eq.  1,  25  cago,  136  111.  277,  26  N.  E.  370; 
All.  199;  Livingston  v.  New  York.  xllden  Coal  Co.  v.  Chulli.s,  200  111. 


1324  Eeal  Peopeety.  [§  366 

use  other  streets  in  the  neighborhood,  this  being  for 
the  individual  members  of  the  public,  or  the  muncipal 
authorities,  to  do,  and  his  rights  can  not  well  be  greater 
when  the  streets  are  nonexistent. 

The  failure  of  the  decisions  clearly  to  explain  the 
true  nature  of  the  estoppel  operating  to  give  to  the 
grantee  of  land  an  easement  corresponding  to  a  street 
or  way,  which  though  actually  nonexistent,  is  referred 
to  as  a  boundary,  or  of  that  operating  to  give  to  him  an 
easement  corresponding  to  a  street  or  other  public  place 
appearing  on  a  plat  referred  to  in  the  conveyance,  as 
well  as  the  difficulties  involved  in  the  question  whether 
a  sale  according  to  a  plat,  as  distinct  from  a  conveyance 
according  to  a  plat,  operates  to  preclude  the  grantor 
from  denying  the  existence  of  the  easement,  appear  to 
emphasize  the  desirability  of  treating  the  matter,  for 
the  most  part  at  least,  as  one  of  the  construction  of  the 
instrument  of  conversance  rather  than  as  one  of  estoppel. 
The  question  then  in  each  case  becomes  one  of  the 
meaning  of  the  language  used  as  regards  the  property 
conveyed,  whether,  that  is,  it  means  tlie  land  alone,  or 
the  land  with  an  easement  annexed  thereto?  While  a 
conveyance  of  land  as  bounded  on  a  street  or  way  is 
ordinarily  presumed,  in  case  the  street  or  way  is  non- 
existent, to  mean  the  land  with  a  private  easement 
annexed  thereto,  this  presumption  has  no  operation  in 
case  a  different  intention  apj^ears  from  the  particular 
language  used.^-  And  it  would  seem,  as  evidence  is 
always  admissible  to  aid  in  the  construction  of  an  in- 
strument, this  presumption  may  be  rebutted  by  refer- 
ence to  the  surrounding  circumstances  at  the  time  of 
the  transaction.     So  the  fact  that  the  grantee  knew  that 

222,  65  N.  E.  665;  Rowan  v.  Port-  v.    Grenet.    22    Tex.    94;    City    of 

land,  8  B.  Mon.   (Ky.)   232;   Heitz  Corsicana   v.    Zorn,    97    Tex.    317. 

V.  City  of  St.  Louis,  110  Mo.  618,  78  S.  W.  924;  Lins  v.  Seefeld,  126 

19  S.  W.  735;   Quicksall  v.  Phila-  Wis.  610,  611,  105  N.  W.  917. 
uelphia,    177    Pa.    301;     Clark    v.  52.     Ante,  this  section,  note  38a. 

Providence,  10  R.  I.  437;   Oswald 


<§.  366]  Easements.  1325 

no  street  or  way  existed  would  be  a  mate.rial  considera- 
tion, not  only  as  showing  that  he  was  not  misled  by  the 
reference  to  the  street  or  way,  but  also  as  showing  that 
the  reference  to  the  street  or  way  was  not  to  be  con- 
sidered for  the  purpose  of  ascertaining  whether  an 
easement  passed  by  the  conveyance.  So  a  conveyance 
of  land  by  reference  to  a  plat  on  which  streets  and 
squares  or  the  like  appear,  is  presumed,  in  case  the 
streets  or  squares  do  not  actually  exist,  to  mean  the 
land  with  corresponding  private  easements  annexed 
thereto,  but  presumably  evidence  that  the  words  used 
meant  the  land  without  any  easements  appurtenant 
thereto  would  be  admissible.  In  case  the  conveyance 
makes  no  reference  to  any  street  or  way,  or  to  a  plat, 
but  the  grantor,  previous  to  making  the  conveyance, 
states  to  the  gTantee  that  there  is  a  street  or  way, 
such  statement  may  be  referred  to  for  the  purpose  of 
determining  whether  the  language  of  the  conveyance 
meant  the  land  with  an  easement  appurtenant  thereto 
of  the  character  referred  to,  or  the  land  without  such  an 
easement.  And  the  same  may  be  said  as  regards  the 
exhibition  by  the  vendor  of  a  plat  on  which  streets  or 
squares  appear,  which  plat  is  not  referred  to  in  the 
conveyance.  Such  act  on  his  part  is,  it  is  conceived, 
to  be  considered  because  it  serves  to  explain  the  meaning 
of  the  language  used  in  the  conveyance  as  applying,  not 
to  the  land  alone,  but  to  the  land  with  easements  appur- 
tenant thereto  corresponding  to  the  public  easements 
depicted  on  the  plat.  Just  as  in  the  case  of  what  is 
ordinarily  referred  to  as  the  implied  grant  of  an  ease- 
ment, the  basic  principle  is  that  a  conveyance  of  land 
in  general  terras  may  be  shown,  by  reference  to  ex- 
trinsic facts,  to  be  intended  as  a  conveyance  of  land 
with  an  easement  annexed,  so  in  this  case  a  conveyance 
of  land  may  be  shown,  by  reference  to  an  extrinsic  fact, 
to  be  intended  as  a  conveyance  of  land  witli  an  oasomont 
or  easements  annexed.  The  application  of  tlie  doctrine 
of  estoppel  might  well  be   confined   to   those   cases   fn 

2  R.  p.— 9 


1326 


Real  Property. 


[^  366 


which  there  is  an  actual  misrepresentation  by  the  ven- 
dor, on  which  the  purchaser  relies,  as  indicated  in  the 
following  subsection. 

(c)    By  representation  or  acquiescence.    If,  in 


order  to  effect  a  sale  of  land,  the  intending  vendor 
states  that  there  is  a  street  or  way  adjacent  to  or  near 
the  land,  or  an  easement  appurtenant  thereto,  and  on 
the  faith  of  such  statement  the  purchase  is  made,  the 
vendor  is  ordinarily  estopped  to  deny  the  existence  of 
the  way,  street  or  other  easement,^^  and  the  same  effect 
has  occasionally  been  given  to  the  exhibition  by  the  ven- 
dor to  the  vendee,  before  the  sale,  of  a  plat  showing  a 
particular  street  or  way  as  existing  in  connection  with 
the  property.^^ 

The  doctrine  of  estoppel  by  representation,  by  means 
of  conduct  of  a  particular  character,  has  occasionally 


53.  Prescott  v.  Edwards,  117 
Cal.  304,  59  Am.  St.  Rep.  156,  49 
Pac.  178;  Kirkpatrick  v.  Brown, 
59  Ga.  450;  Mattes  v.  Frankel, 
157  N.  Y.  603,  52  N.  E.  585,  68 
Am.  St.  Rep.  804;  Cleaver  v. 
Manhanke,  120  Iowa,  77,  94  N.  W. 
279;  Kixmiller  v.  Bait.  &  0.  S, 
W.  R.  Co.,  60  Ind.  App.  686,  111 
N.  E.  401. 

So  it  was  held  that  purchaser 
ot  lots  to  whom  the  vendor  had 
stated  that  there  were  appurte- 
nant thereto  rights  as  to  sewers 
and  a  water  system  could  not 
be  deprived  by  the  vendor  of  the 
right  to  make  use  of  such  sewer 
and  water  systems  as  existed. 
Biggs  V.  Sea  Gate  Ass'n,  211  N. 
Y.   482,   105   N.   E.   664. 

The  purchase  must  obviously  be 
made  in  reliance  on  the  state- 
ment by  the  vendor  in  order  that 
the  latter  be  estopped.     Poronto 


V.  Sinnott,  89  Vt.  479,  95  Atl.  647. 

54.  Ford  v.  Harris,  95  Ga.  97, 
22  S.  E.  144;  Cihak  v.  Klekr,  117 
111.  643,  7  N.  E.  Ill;  Dubuque 
V.  Maloney,  9  Iowa,  450,  74  Am. 
Dec.  358;  Babcock  v.  Heenan,  193 
Mich.  229,  159  N.  W.  494;  In  re 
Edgewater  Road,  13  N.  Y.  App. 
Div.  203,  affirmed  199  N.  Y.  560; 
In  re  Sedgwick  Ave.,  162  N.  Y. 
App.  Div.  236,  147  N.  Y.  Supp. 
661. 

In  Pyper  v.  Whitman,  32  R.  I. 
510,  80  Atl.  6,  such  an  effect  was 
denied  to  the  exhibition  of  a  plat, 
apparently  on  the  theory  that 
it  would  involve  a  violation  of 
the  "parol  evidence"  rule.  In 
Dawson  v.  St.  Paul  Fire  &  Ma- 
rine Ins.  Co.,  15  Minn.  36,  2  Am. 
Rep.  139,  it  was  questioned 
whether  the  exhibition  of  a  plat 
should  have  this  effect. 

54d.     Ante,  §   339(h). 


§  366]  Easements.  1327 

been  applied  or  asserted  for  the  purpose  of  establisliing 
an  easement  when  the  one  clai'ming  the  easement  has 
made  improvements,  or  otherwise  adopted  a  particuhir 
course  of  action  on  the  assumption  that  a  changed  con- 
dition already  existing  in  connection  with  a  stream  or 
body  of  water  would  be  allowed  to  continue,  with  the 
result  that  the  o^vner  of  the  land  on  which  such  con- 
dition existed  was  precluded  from  changing  back  to  the 
original  condition,^"'^*^  and  one  might  be  estopped  to 
deny  the  existence  of  an  easement  by  his  conduct  in 
inducing  another  to  make  improvements  for  the  purpose 
of  utilizing  the  supposed  easement.^^^ 

In  case  there  is  an  attempted  oral  grant  of  an 
easement,  and  the  intended  grantee  makes  improve- 
ments  for  the  purpose  of  exercising  the  easement,  equity 
will  recognize  and  enforce  the  easement  on  the  theory  of 
what  is  ordinarily  referred  to  as  that  of  part  perfor- 
mance^*^ but  which  is  essentially  the  theory  of  estoppel. 

54e.     See  MiUer   &  Lux  v.  En-  v.    Lewis,    13    Conn.    303,    33    Am. 

terprise   Canal    &    Land    Co.,    169  Dec.    405;    Penn    American    Plate 

Cal.    415,    147    Pac.    567;     Morris  Glass    Co.    v.    Schwinn,    177    Ind. 

Canal  &  Banking  Co.  v.  Diamond  645,   98    N.    E.   715;    Townsend   v. 

Mills  Paper  Co.,  71  N.  J.  Eq.  481,  Epstein,  93   Md.   537,  52  L.  R.  A. 

64   Atl.   746,   73   N.  J.   Eq.   414,   75  409,   86  Am.   St.  Rep.  441,  49  Atl. 

All.       1101;       Smith       v.       Row-  629;   Morrill  v.  St.  Anthony  Falls 

land,  243  Pa.  306,  90  Atl.  183.  See  Water    Power   Co.,   26   Minn.   222, 

cases  cited,  note  to  L.  R.  A.    (N.  37   Am.    Rep.    399,    2    N.    W.    842; 

S.)   1916C,  at  p.  940  et  seq.  Laird   v.  Atlantic  Coast   Sanitary 

Ordinarily,  however,  one's  mere  Co.,  73  N.  J.  Eq.  49,  67  Atl.  387; 
acquiescence  in  the  making  of  New  York  Rubber  Co.  v.  Rothery, 
improvements  by  another  for  the  107  N.  Y.  310,  1  Am.  St.  Rep. 
purpose  of  making  a  use  of  the  822,  14  N.  E.  269;  Lavery  v. 
latter's  land  which  involves  a  vio-  Arnold,  36  Ore.  84,  57  Pac.  908, 
lation  of  a»iiatural  right  appertain-  58  Pac.  524;  Silver  Spring  Bleach- 
ing to  the  former's  land  involves  no  ing  &  Dyeing  Co.  v.  Wanskuck, 
estoppel  to  deny  the  existence  of  13  R.  I.  611. 

an  easement  in  diminution  of  such  54f.     Ante,   §    349(r]),   notes    44- 

catural  right.    See  Lux  v.  Haggin,  49. 
69  Cal.  255,  10  Pac.  674;  Johnson 


1328  Kb-\l  Property.  [§  367 


III.     Eights  of  Usee. 

§  367.  Easements  created  by  grant.  The  mode  io 
which  an  easement  may  be  exercised,  that  is,  the  charac- 
ter and  extent  of  the  rights  and  privileges  involved 
therein,  is,  in  the  case  of  an  easement  created  by  grant, 
determined  by  construction  of  the  langniage  of  the 
grant.^^  So  it  is  a  question  of  construction  whether  the 
easement  is  restricted  by  the  use  made  of  the  dominant 
tenement  at  the  time  of  the  grant,  or  whether  the  burden 
of  the  easement  may  be  increased  with  any  increase  or 
change  in  the  use  of  the  dominant  tenement.^^ 

Since  the  language  used  in  the  grant  of  an  ease- 
ment is  ordinarily  of  a  general  character,  containing 
no  mention  of  specific  rights  and  pri\ileges,  the  proc- 
ess of  construction  involves  not  only  the  ascertainment 
of  the  actual  intention  from  the  language  used,  but 
also  the  establishment  of  a  presumed,  a  fictitious,  inten- 
tion, in  regard  to  matters  as  to  which,  so  far  as  appears, 
there  was  no  actual  intention,'^'  and  for  this  purpose  the 
courts  have  established  certain  rules  of  construction  to 
be  applied  in  connection  with  such  a  grant.  Frequently 
these  rules  are  stated  as  positive  rules  of  law  and  not 
of  construction,  but  they  are,  in  their  last  analysis, 
merely  rules  of  construction,  since  they  are  controlled 
by  any  expression  of  intention  in  the  grant.  For  in- 
stance, when  it  is  said  that  the  owner  of  the  dominant 
tenement  may  make  such  changes  on  the  servient  tene- 
ment as  are  necessary  for  the  proper  exercise  of  the 

55.     Whitehead     v.     Parks,     2  271;     Kinney    v.    Hooker,    65    Vt. 

Hurl.  &X.  370;  Williams  v.  James,  .333.  36  Am.  St.  Rep.  864,  26  Atl. 

L.  R.  2  C.  P.,  577;  Field  v.  Leiter,  690;    Stephen  Putney  Shoe  Co.  v. 

118  111.  17,  6  N.  E.  877;  Moore  v.  Richmond    F.    &    P.    R.    Co.,    116 

Fletcher,  16  Me.  63,  33  Am.  Dec.  Va.  211,  81  S.  E.  93. 

633;   French  v.  Marstin,  24  N.  H.  56.     PoRt,   §    369. 

440,   57   Am.   Dec.   294;    Abbott  v.  57.     See      Salmoiul,      Jurispru- 

Butler,    59    N.    H.    317;    Wells    v.  dence   (4th  Bd.)   141,  note. 
Tolman,   156  N.   Y.   636,  51  N.   E. 


^,  367]  Easements.  1329 

easement,^^  this  properly  means  that  the  grant  of  an 
easement  is  lorima  facie  to  be  construed  as  intended  to 
confer  such  a  privilege.  This  practice  of  stating  a  rule 
of  construction  in  the  form  of  a  rule  of  law  is  of  such 
obvious  convenience  in  this  connection  that  it  will  be 
adopted  to  some  extent  in  the  following  pages,  in  spite 
of  the  technical  inaccuracy  involved  therein. 

As  in  the  case  of  other  written  instruments,  the 
circumstances  under  which  the  grant  was  made  are  to 
be  considered  as  aids  in  its  construction.^^  In  case  of 
doubt  the  grant  of  an  easement  is  construed,  as  are 
conveyances  generally,  in  favor  of  the  grantee  rather 
than  the  grantor.*^^  While  a  reservation  of  an  ease- 
ment is,  it  seems,  to  be  construed  in  favor  of  the 
grantee  of  the  land.*'^ 

The  mode  in  which  the  grantee  of  the  easement, 
wtih  the  grantor's  acquiescence,  exercised  the  easement 
after  its  acquisition,  that  is,  the  practical  construction 
of  the  grant  by  the  parties,  may  be  referred  to  in  order 
to  aid  in  ascertaining  its  meaning,^^  }q^\^  \\^q  f^^^  n^^X 

58.  Post  §  370.  235   Pa.    5,   83   Atl.   592;    Smith   v. 

59.  Wood  V.  Saunders,  44  Law       Duncan,    35    Utah,    203,    99    Pac. 
J.  Ch.  514;  Currier  v    Howes,  103       673. 

Cal.    431,    37    Pac.    521;    Peck    v.  60.     Sweeney  v.  Landers,  Frary 

Mackowsky,  85  Conn.  190,  82  Atl.  &  Clark,  80  Conn.  575,  69  Atl.  566; 

199;    Baker  v.  Frick,  45  Md.   337,  Frisbie  v.  Bigham  Masonic  Lod?e 

24  Am.  Rep.  506;   Mendell  v.  De-  No.    256,   133   Ky.   588,   118   S.    W. 

lane,  7  Mete,    (ilass.)    176;    Row-  359;   Atkins  v.   Bordman,  2  Mete. 

ell  V.  Doggett,  143   Mass.   483,  10  (Mass.)    457;     Duross    v.    Singer, 

N.  E.  182;  McConnell  v.  Rathbun,  224    Pa.    573,    73    Atl.    951;    First 

46  Mich.  303,  9  N.  W.  426;  White  Baptist   Soc.   v.   Wetherall,   34   R. 

V.  Eagle  &  Phen.ix  Hotel  Co.,  68  L  155,  82  Atl.  1061;  Stephen  Put- 

N.   H.    38,   34   Atl.   672;    Cheswell  ney  Shoe   Co.  v.   Richmond   F.   & 

V.  Chapman,  38  N.  H.  14,  75  Am.  p.   R.   Co.,  116   Va.   211,   81   S.    E. 

Dec.    158;    Cooper    v.    Louanstein,  93. 

37    N.    J.    Eq.    284;     Herman     •/.  61.     Mitchell  v.  Reid,  192  N.  Y. 

Roberts,  119  N.  Y.  37,  7  L.  R.    \.  255,   85   N.    E.    65;    Redemptorists 

226,   16   Am.    St.    Rep.    800,   23    N.  v.  Wenig,  79  Md.  348,  29  Atl.  667. 

E.    442;    Hotchkiss    v.    Young,    42  See   Reese  Hiowell  Oo.  v.   Brown, 

Ore.  446,  71  Pac.  324;   Mercantilo  48  Utah,  142,  158  Pac.  684. 
Library  Co.  v.  Fidelity  Trust  Co., 


1330 


Real  Property. 


[§  367 


the  grantee  inade  for  a  considerable  time  a  more  limited 
use  of  the  land  than  that  justified  by  the  grant  cannot 
affect  the  construction  of  a  grant  which  is  in  terms 
unambiguous.*'^ 

It  has  been  said  in  one  state  that  the  owner  of  an 
easement  in  the  land  of  another  need  not  use  it  in  the 
particular  manner  prescribed  by  the  instrument  which 
creates  it,  and  may  use  it  in  a  different  manner,  pro- 
vided he  does  not  increase  the  servitude  or  change  it  to 
the  injury  of  the  servient  tenement.^^  The  exact  mean- 
ing of  this  statement  does  not  clearly  appear.  It  can 
hardly  mean  that  one  having  an  easement  of  a  certain 
character  can  substitute  an  easement  of  a  different 
character,  provided  this  does  not  operate  to  the  preju- 
dice of  the  servient  tenement.^^  The  statement  was 
made  on  the  authority  of  decisions  that  in  the  case  of 
an  easement  to  flow  land  or  to  have  water  pass  to  one's 


62.  Fox  V.  Millar,  150  Fed. 
320;  Winslow  v.  City  of  Vallejo, 
148  Cal.  723,  5  L.  R.  A.  (N.  S.) 
851,  113  Am.  St.  Rep.  349,  84  Pac. 
191;  Drummond  v.  Foster,  107 
Me.  401,  78  Atl.  470;  Blais  v. 
Clare,  207  Mass.  67,  92  N.  E.  1009; 
Onthank  v.  Lake  Shore  &  M.  S. 
R.  Co.,  71  N.  Y.  194;  Bernero  v. 
McFarland  Real  Estate  Co.,  134 
Mo.  App.  290,  114  S.  W.  531;  Mer- 
cantile Library  Co.  v.  Fidelity 
Trust  Co.,  235  Pa.  5,  83  Atl.  592; 
Cram  v.  Chase,  35  R.  I.  98,  43 
L.  R.  A.  N.  S.  824,  85  Atl.  642; 
Sked  V  Pennington.  Spring  Water 
Co.,  72  N.  J.  599,  65  Atl.  713. 

So  when  one  having  an  ease- 
ment of  light  availed  himself  of 
such  easement  by  maintaining 
windows  in  a  wall  for  many 
years,  this  was  regarded  as  lix- 
ing  the   character   and   extent   of 


the  easement.  Kesseler  v.  Bow- 
ditch,  223  Mass.  265,  111  N.  E. 
887. 

63.  Bowers  v.  Myers,  237  Pa. 
533,  85  Atl.  860;  Hammond  v. 
Hammond,  250  Pa.  51,  101  Atl. 
855.  This,  even  though  the  per- 
son having  the  easement  con- 
sented to  an  erection  which  pre- 
vented it  full  exercise.  Cotting 
V.  Murray,  209  Mass.  133,  95  N. 
E.  212. 

64.  Tallon  v.  City  of  Hoboken, 
60  N.  J.  L.  212,  37  Atl.  895,  it 
being  there  decided  that  if  one 
dedicating  land  for  a  street  re- 
served the  right  to  lay  tracks 
for  horse  cars  and  steam  cars 
he  could  lay  tracks  and  string 
wires  for  electric  cars. 

65.  See  United  States  Pipe  Line 
Co.  V.  Delaware,  etc.,  R.  Co.,  62 
N.  J.  L.  254.  42  L.  R.  A.  572. 


§  367] 


Easements. 


1331 


land,  the  use  to  which  the  water  is  put  is  immaterial.^® 
These  decisions  do  not  appear  to  support  the  statement. 
If  the  owTier  of  an  easement  enters  on  the  servient 
tenement  for  a  purpose  not  included  in  the  rightful 
exercise  of  the  easement,  he  is  liable  as  a  trespasser  to 
the  same  extent  as  if  he  had  no  easement."^ 

Rights  of  way.    A  right  of  way  appurtenant  to 


a  particular  tenement,  as  being  intended  for  the  pur- 
pose of  access  to  and  egress  from  such  tenement,  can- 
not be  utilized  by  the  owner  of  such  tenement  for  the 
purpose  of  reaching  other  land.^^  He  may,  however, 
after  going  to  the  dominant  tenement  by  the  right  of 
way,  pass  to  a  place  beyond,  if  he  did  not  have  this  in 
mind  when  going  to  the  dominant  tenement,  the  ques- 
tion being  of  his  bona  fides  in  making  use  of  the  way.''^ 


66.  Luttrell's  Case,  4  Co.  Rep. 
S7;  Sanders  v.  Norman,  1  B.  & 
Aid.  258;  Johnston  v.  Hyde,  33 
N.  J.  Eq.  632;  Angell,  Water- 
courses, §§  228-230. 

67.  Kaler  v.  Beaman,  49  Me. 
£07;  Appleton  v.  FuUerton,  1 
Gray  (Mass.)  186;  Ganley  v. 
Looney,  14  Allen  (Mass.)  40;  El- 
liott V.  Rhett,  5  Rich.  (S.  C.)  405, 
57  Am.  Dec.  750. 

68.  Howell  V.  King,  1  Mod. 
190;  Colchester  v.  Roberts,  4 
Mees.  &  W.  769;  West  v.  Louis- 
ville &  N.  R.  Co.,  137  Ala.  568, 
r.4  So.  852;  Anderson  v.  Sweeney, 
82  Conn.  694,  75  Atl.  76;  Good- 
willie  Co.  V.  Commonwealth  Elec- 
tric Co.,  241  111.  42,  89  N.  E.  272; 
Hoosier  Stone  Co.  v.  Malott,  130 
Ind.  21,  29  N.  E.  412;  Louisville, 
N.  A.  &  C.  Ry.  Co.  V.  Malott,  135 
Ind.  113,  34  N.  E.  709;  Albert  v. 
Thomas,  73  Md.  1,  20  Atl.  912; 
Davenport  v.  Lamson,  21  Pick. 
Ulass.)  72;  Greene  v.  Canny,  137 


Mass.  64;  Randall  v.  Grant,  210 
Mass.  302,  96  N.  E.  672;  French 
V.  Marstin,  32  N.  H.  316;  Diocese 
of  Trenton  v.  Toman,  74  N.  J. 
Eq.  702,  70  Atl.  606;  Hales  v. 
Atlantic  Coast  Line  R.  Co.,  172 
N.  C.  104,  90  S.  E.  11;  Shroder 
V.  Brenneman,  23  Pa.  St.  348; 
Springer  v.  Mclntyre,  9  W.  Va. 
196;  Reise  v.  Enos,  76  Wis.  634, 
8  L.  R.  A.  617,  45  N.  W.  414. 

So  it  was  held  that  one  could 
not  bring  materials  to  the  dom- 
inant tenement  by  a  right  of  way 
appertaining  thereto,  and  after 
leaving  them  there  a  short  time, 
carry  them  to  a  point  beyond, 
to  be  used  in  the  construction 
of  buildings.  Skull  v.  Glenister. 
16  C.  B.    (N.  S.)   81. 

69.  Williams  v.  James,  L.  R. 
2  C.  P.  577;  French  v.  Marstin, 
32  N.  H.  316.  The  use  of  a  right 
of  way  for  access  to  a  highway 
stands  on  a  different  basis,  and 
the  owner  of  the  dominant  tene- 


1332 


Eeal  Peoperty. 


[§  367 


A  right  of  way  may  be  general,  as  capable  of 
use  for  all  purposes,  or  may  be  limited  to  use  by  foot 
passengers  only,  or  horses  only,  or  particular  species 
of  vehicles,  or  for  the  transportation  of  certain  classes 
of  articles.'^^  So  one  may  have  a  right  of  way  for 
carriages,  without  the  right  of  driving  cattle  along  the 
way,  or  of  using  it  for  the  transportation  of  farm 
products  ;'^^  or  he  may  have  a  w^ay  for  agricultural 
purposes,  without  any  right  to  transport  other  classes 
of  articles,  such  as  coal  taken  from  the  dominant  tene- 
ment.'^- 

A  grant  in  general  terms  will  ordinarily  be  con- 
strued as  creating  a  general  right  of  way  cai>able  of 
use  for  all  reasonable  purposes,'^  but  the  circum- 
stances may  demand  a  different  construction,^^  as  for 
instance  when  the  physical  condition  of  the  servient 
tenement  is  such  that  a  general  user  of  the  way  would 
involve  an  injury  to  such   tenement,'^   and  the  named 


ment  may  go  therefrom  to  the 
highway,  though  he  intends  there- 
after to  go  from  the  highway 
to  a  point  beyond,  since  this  is 
the  obvious  purpose  of  a  right  of 
way  to  a  highway.  Colchsster  v. 
Roberts,  4  Mees.  &  W.  769. 

70.  As  a  privilege  of  trans- 
porting wood  (Myers  v.  Dunn,  49 
Conn.  71),  stone  (Hoosier  Stone 
Co.  V.  Malott,  130  Ind.  21,  29  N. 
E.  412;  Shoemaker  v.  Cedar 
Rapids,  I.  F.  &  N.  W.  R.  Co.,  45 
Minn.  366,  48  N.  W.  191),  or  coal 
(Webber  v.  Vogel,  159  Pa.  235,  28 
Atl.  226). 

71.  Ballard  v.  Dyson,  1  Taunt. 
2'i9;  Herman  v.  Boberts,  119  N. 
Y.  37,  16  Am.  St.  Rep.  800;  Perry 
V.  Snow,  165  Mass.  23;  Myers  v. 
Dunn,  49  Conn.  71. 

72.  Cowling  v.  Higginson,  4 
Mees.  &  W.  245. 


That  an  automobile  was  a  car- 
riage within  a  grant  of  a  right 
of  way  for  carriages,  see  Diocese 
of  Trenton  v.  Toman,  74  N.  J. 
Eq.  702,   70   Atl.   606. 

73.  Thomas  Cusack  Co.  v. 
Mann,  160  111.  App.  649;  Frost 
V.  Jacobs,  204  Mass.  1,  90  N.  E. 
357;  Randall  v.  Grant,  210  Mass. 
302,  96  N.  E.  672;  Abbott  v.  But- 
jer,  59  N.  H.  317;  Shreve  v.  Math- 
is,  63  N.  J.  Eq.  170,  52  Atl.  234; 
Arnold  v.  Fee,  148  N.  Y.  214,  238, 
42  N.  E.  588;  Bowers  v.  Myers, 
237  Pa.  533,  85  Atl.  860;  Central 
Christian  Chui-ch  v.  Lennon,  59 
Wash.  425,  109  Pac.  1027;  United 
Land  Co.  v.  Great  Eastern  Ry. 
Co.,  10  Ch.  App.  586. 

74.  See  Cannon  v.  Villars,  8 
Ch.  Div.  420. 

75.  Rov/ell  v.  Daggett,  143 
Mass.   483,   10  N.  E.   182. 


^  367] 


Easements. 


133: 


width  of  the  way  may  be  such  as  to  render  it  apparent 
that  a  foot  way  only  is  intended."^^ 

A  right  of  way  may,  by  the  terms  of  the  grant,  be 
limited  to  certain  seasons"  or  persons,^ «  or  even  to  a 
particular  time  of  day.'^  It  may  also  be  subject  to 
interruption  by  reason  of  a  particular  use  that  may 
be  made  by  the  owner  of  the  servient  tenement.^'^ 

In  the  absence  of  express  restrictions  in  that  re- 
gard in  the  grant,  it  seems  that  all  persons  who  can  be 
regarded  as  having  peraiission,  express  or  implied,  to 
enter  on  the  dominant  tenement,  may  use  a  way  for 
the  purpose  of  access  to  such  tenement  and  of  egress 
therefrom.^^  Consequently  members  of  the  family  of 
the  dominant  owner,^^  i^[^  servants  and  employees,^=^ 
his  guests,^^  and  tradesmen  and  other  persons  with 
whom  he  does  business,^^  may  do  so.     Such  persons  are 


76.  Perry  v.  Snow,  165  Mass. 
13,  42  N.  E.  117. 

77.  Wells  V.  Tolman,  156  N. 
Y.  636,  51  N.  E.  392. 

78.  Hollins  v.  Verney,  13  Q. 
B.  D.  304. 

79.  Collins  v.  Slade,  23  Week- 
ly Rep.   199. 

80.  Wells  V.  Tolman  156  N. 
Y.  636,  51  N.  E.  392;  Mercer  v. 
Woodgate.  L.   R.   5   Q.   B.   26. 

81.  Shreve  v.  Mathis,  63  N.  J. 
Eq.  170,  52  Atl.  234;  Gunson  v. 
Healy,  100  Pa.  42. 

82.  Griffith  v.  Rigg,  18  Ky. 
Law  Rep.  463,  37  S.  W.  58;  Bax- 
endale  v.  North  Lambeth  Liberal, 
etc.,  Club  (1902)   2  Ch.  427. 

83.  Metcalfe  v.  Westaway,  34 
T^.  .1.  C.  P.  113;  Cleaves  v.  Bra- 
man,  103  Me.  154,  68  Atl.  857; 
Shreve  v.  Mathis,  63  N.  J.  Etj. 
170,  52  Atl.  234. 

84.  Baxendale  v.  North  Lam- 
beth Liberal  Club  (1902)  2  Ch. 
427. 


85.  Shreve  v.  Mathis,  63  N.  J. 
Eq.  170,  52  Atl.  234;  Common- 
wealth V.  Burford,  225  Pa.  93,  73 
Atl.    1064. 

In  Tutwiler  Coal,  Coke  &  Iron 
Co.  V.  Tuvin,  158  Ala.  657,  48  So. 
79,  it  was  apparently  held  that 
a  person  was  not  justified  in  using 
a  way  to  go  to  a  residence  to 
collect  a  furniture  bill  unless 
circumstances  appeared  showing 
an  invitation  to  such  person  on 
the  part  of  the  person  entitled 
to  the  way,  to  use  the  way,  or 
his  consent  to  such  use.  It  would 
seem  that  the  purchase  of  the 
furniture  might  have  been  re- 
garded as  justifying  the  inference 
that  the  purchaser  consented  to 
have  the  vendor  send  to  collect 
the  bill.  The  court  emphasises 
the  fact  that  the  way  was  one  of 
necessity,  but  it  is  difficult  to  see 
the  materialty  of  this  consider- 
ation. 


1334  Real  Property.  [§  367 

not  guilty  of  trespass  in  using  the  way,  and  the  owner 
of  the  easement  would,  it  seems,  have  a  right  of  action 
in  case  there  was  an  interference  with  the  use  of  the 
way  by  a  member  of  one  of  these  classes. 

The  owner  of  the  right  of  way  may  have,  in  some 
cases,  in  addition  to  the  privilege  of  passage,  and  as  in- 
cidental thereto,  the  privilege  of  placing  goods  tempo- 
rarily on  that  part  of  the  servient  tenement  on  which  the 
w^ay  is  located,^*^"^^  of  letting  horses  and  carriages  stand 
thereon,®^  or  of  swinging  a  gate  thereover.^^  The  grant 
of  a  right  of  way  in  general  terms  has  been  construed  as 
not  enabling  the  grantee  to  lay  a  pipe  for  the  transpor- 
tation of  gas  or  oil,^*^  to  string  electric  light  wires,^^ 
to  fence  off  the  way,^-  or  to  take  ice,^^  or  herbage.^'' 
One  to  whom  was  granted  a  right  of  way  across  a  creek 
was  regarded  as  entitled  to  build  a  bridge  although  for 
twenty  years  after  the  grant  there  was  merely  a  ford.*'"*'* 

The  person  entitled  to  use  a  private  way  cannot 
deviate  therefrom  on  the  land  outside  of  the  way  be- 
cause the  way  is  impassable,  unless,  perhaps,  there  is 
an   obligation   upon  the   servient   owner  to   repair   the 

86-87.     Appleton  v.  FuUerton,  1  A.    512,    33    Am.    St.    Rep.    55,    52 

Gray  (Mass.)  186.    Compare  Kaler  N.    W.    590;      Contra,    Murray    v. 

V.  Beanaii,  49  Me.  207.  Murray   v.   Dickson,   57   Tex.   Civ. 

88.  Van  O'Linda  v.  Lathrop,  21  620,  123  S.  W.  179,  where  there 
Pick.  (AFass.)  292,  32  Am.  Dec.  were  circumstances  to  show  that 
261.  it  was  contemplated  that  the  way 

89.  Ditto.  was  to  be  used  for  driving  cattle, 

90.  United  States  Pipe  Line  and  Harvey  v.  Crane,  85  Mich. 
Co.  V.  Delaware,  L.  &  W.  R.  Co.,  316,  12  L.  R.  A.  601,  48  N.  W. 
62  N.  J.  L.  254,  42  L.  R.  A.  572,  582,  where  the  right  of  way  was 
41  Atl.  759;  Allen  v.  Scheib,  257  not  created  by  grant  but  was  laid 
Pa.  6,  101  Atl.  102.  off  under  the  statute. 

91.  Carpenter  v.  Capital  Elec-  93.  Julian  v.  Woodsmall,'  82 
trie  Co.,  178   111.   29,  43  L.   R.  A.  Ind.  568. 

645,  69  Am.  St.  Rep.  286,  52  N.  E.  94.     Emans      v.      Turnbull,      2 

973.  Johns.    (N.    Y.)    313,    3    Am.    Dec. 

92.  Moffitt    V.    Lytle,    165    Pa.       427. 

173,    30    Atl.    922;    Wiley   v.    Ball,  94a.     Hammond    v     Hammond, 

72  W.  Va.  683,  79  S.  E.  659;   Sizer       258  Pa.  51,  101  Atl.  855. 
V    Quinlan,  82  Wis.  390,  16  L.  R. 


§  367] 


Easements. 


1335 


way,^^  or  unless  tlie  latter  has  caused  the  obstruction 
of  the  way."*' 

Location.     If  the   location   and   limits   of   the 


right  of  way  are  not  defined  in  the  grant,  a  reasonably 
convenient  and  suitable  way  is  presumed  to  be  in- 
tended, and  the  right  cannot  be  exercised  over  the 
whole  of  the  land."^  Subject  to  the  requirement  of 
reasonable  convenience  and  suitability,  the  owmer  of 
the  servient  tenement  may  ordinaril}'-,  in  such  case,  fix 
the  location,  and  it  has  been  considered  that  if  he 
fails  to  do  so,  the  owner  of  the  easement  is  entitled 
to  fix  it."*  And  this  is  the  case  as  regards  a  way 
of  necessity  to  the  same  extent  as  any  other  way  created 
by  grant."^ 


95.  Taylor  v.  Whitehead,  2 
Dou?.  7^5;  Lund  v.  Wilcox,  34 
Utah,    205,    97    Pac.    33. 

96.  Selby  v.  Nettlefold,  9  Ch. 
App.  Ill;  Farnum  v.  Piatt,  8 
Pick.  (Mass.)  339;  Bass  v.  Ed- 
wards, 126  I\Iass.  445;  Kent  v. 
Judkins,  53  Me.  162;  Rockland 
Water  Co.  v.  Tillson,  75  Me.  170; 
Haley  v.  Colcord,  59  N.  H.  7,  47 
Am.  Rep.  176;  Jarsdadt  v.  Smith, 
51  Wis.  96.  Contra,  Williams  v. 
Safford,  7  Barb.  (N.  Y.)  309.  See 
Holmes  v.  Seely,  19  Wend.  (N. 
Y.)   507. 

97.  Long  V.  Gill,  80  Ala.  408; 
Johnson  v.  Kinnicutt.  2  Cush. 
(Mass.)  153;  Gardner  v.  Webster, 
64  N.  H.  520,  15  Atl.  144;  Grafton 
V.  Moir,  130  N.  Y.  465,  27  Am.  St. 
Rep.  533,  29  N.  E.  974  (reser- 
vation). 

98.  Ballard  v.  Titus,  157  Cal. 
673,  110  Pac.  118.  Shedd  v.  Amer- 
ica Maize  Products  Co.,  60  Ind. 
App.  146,  108  N.  E.  610;  Bangs  v. 
Parker,    71    Me.    458;     MoKenney 


McKenney,  216  Mass.  248,  103  N. 
E.  631;  Bunch  v.  Wheeler,  210 
Mo.  622,  109  S.  W.  654;  Callen  v 
Hause,  91  Minn.  270,  97  N.  W. 
973;  Smith  v.  Wiggin,  52  N.  H. 
112;  Peduzzi  v.  Restelli,  79  Vt. 
349,  64  Atl.  1128;  Stephens  v.  Gor- 
don, 22  Can.  Sup.  Ct.  61.  In  Mo- 
Kell  V.  Collins  Colliery  Co.,  46  W. 
Va.  625,  33  S.  E.  765,  it  is  said 
that  the  owner  of  the  way  may 
locate     it.       The     opinion     refers 

to  Hart  V.  Connor,  25  Conn. 
331,  but  there  the  right  to  locate 
the  way  was  expressly  reserved 
99.  Gale,  Easements  [8th  ed.] 
1982;  Kripp  v.  Curtis,  71  Cal.  62, 
n  Pac.  879;  Ritchey  v.  Welsh.  149 
Ind.  214,  40  L.  R.  A.  105,  4S  N.  E. 
1031;  Russell  v.  .Tackson,  2  Pick. 
(Mass.)    574;    Bass     v.     Edwards, 

126  Mass.  445;  Powers  v.  Harlow, 
53  Mich.  507,  51  Am.  Rep.  154; 
Herrin  v.   Siebern,   46   Mont.   226, 

127  Pac.  323;  Holmes  v.  Seely,  19 
Wend.  (N.  Y.)  507;  Capers  v.  Wil- 
son. .3  McCord,  (S.  C.)  170;  McMil- 


1336 


Real  Property. 


[§  867 


In  case  tliere  has  been,  up  to  tlie  time  of  the  grant 
and  at  the  time  thereof,  a  user  of  the  land  for  purposes 
of  passage  along  a  certain  line,  this  will,  it  has  been 
said,  be  presumed  to   be   the  location  intended.^ 

Frequently,  the  location  of  the  way  is  determined 
by  subsequent  agreement, ^^  or  by  the  exercise  of  the 
right  of  way  in  a  particular  line  with  the  acquiescence 
of  the  owner  of  the  servient  tenement,^  the  parties  to 
the  grant  thus  placing  their  own  construction  thereon 
in  this  regard. 

The  power  of  a  court  of  equity  to  fix  the  location 
has  been  recognized  in  a  number  of  cases,''  apparently 


len  V.  McKee,  129  Tenn.  39,  164 
S.  W.  1197;  Jenne  v.  Piper,  69  Vt. 
497,  38  Atl.  147. 

But  not,  it  has  been  said,  when 
the  way  of  necessity  resulted  from 
a  partition  proceeding  between 
several  persons,  so  that  the  re- 
cognition of  an  option  to  locate  in 
one  of  them  would  involve  a  power 
to  discriminate  between  the 
others.  Mesmer  v.  Uharriet,  174 
Cal.  110,  162  Pac.  104. 

1.  Karnmuller  v.  Krotz,  18 
Iowa,  352;  Cotting  v.  Murray,  209 
Mass.  133,  95  N.  E.  212;  Thompson 
V.  Flint  &  P.  M.  R.  Co.,  131  Mich. 
95,  90  N.  W.  1037;  Crocker  v. 
Crocker,  5  Hun,  (N.  Y.)  587; 
Kraut's  Appeal,  71  Pa.  St.  64; 
Kinney  v.  Hooker,  65  Vt.  333,  36 
Am.   St.   Rep.   864. 

la.  Gerrish  v.  Shattuck,  128 
Mass.  571;  Eureka  Land  Co.  v. 
Watts,  119  Va.  506,  89  S.  E.  968; 
See  Morris  v.  Blunt,  49  Utah,  243, 
161  Pac.  1127. 

2.  Roberts  v.  Stevens,  40  111.  App. 
138;  Dickenson  v.  Crowell,  120 
Iowa,  254,  94  N.  W.  495;  Roland 
V.   O'Neal,    (Ky.)    122    S.  W.   827, 

(way  of  necessity) ;  Bannon  v.  An- 


gier,  2  Allen  (Mass.)  128;  O'Brien 
V.  Goodrich,  177  Mass.  32,  58  N.  E 
151;  Board  of  Sup'i^  of  Lamar 
County  V.  Elliott,  107  Miss.  841,  66 
So.  203;  Davis  v.  Watson,  89  Mo. 
App.  15;  Wynkoop  v.  Burger,  12 
Johns.  (N.  Y.)  222;  Crocker  v. 
Crocker,  5  Hun,  (N.  Y.)  587; 
Warner  v.  Columbus,  etc.,  R.  Co. 
39  Ohio  St.  70;  Eureka  Land  Co.  v. 
Watts,  119  Va.  506,  89  S.  E.  968; 
Fritsche  v.  Fritsche,  77  Wis.  266, 
45  N.  W.  1088;  Kalinowski  v. 
Jacobowski,  52  Wash.  359,  100  Pac. 
852. 

But  it  was  held  that  the  acqui- 
escence by  the  servient  owner  in 
the  passage  by  the  dominant 
owner  over  a  particular  line  did 
not  show  a  location  of  the  way  in 
this  line  if  the  condition  of  the 
servient  tenement  was  such  that 
it  was  immaterial  where  the  other 
passed.  Smith  v.  Wiggin,  52  N.  H. 
112.  And  see  Colt  v.  Redfield,  59 
Conn.    427,   22   Atl.   426. 

3.  Lide  v.  Hadley,  36  Ala.  627, 
76  Am.  Dec.  338;  Ballard  v.  Titus, 
157  Cal.  673,  110  Pac.  118;  David- 
son V.  Ellis,  9  Cal.  App.  145,  98 
Pac.    254;     McKenney    v.    McKen- 


§  367]  Easements.  1337 

on  the  ground  that  a  multiplicity  of  suits  is  thereby 
avoided. 

Width  of  way.     As  regards  the  width  of  the 

way,  a  specific  statement  in  the  grant  obviously  gov- 
erns,^ and  such  a  statement  is  not  controlled  by  con- 
siderations as  to  what  is  reasonable  or  necessary.^  A 
specification  of  the  way  as  being  of  a  certain  width 
has  been  regarded  as  not  entitling  the  grantee  to 
utilize  more  than  that  width  in  order  to  be  able  to 
make  a  road  of  that  width.*^ 

If  the  Avidth  is  not  fixed  by  the  terms  of  the  grant, 
the  grantee  is  ordinarily  entitled  to  a  way  of  such  width 
as  is  sufficient  to  afford  reasonable  access  and  egress.'^ 
And  if  the  way  is  granted  for  a  particular  purpose, 
what  is  reasonably  necessary  for  that  purpose  is  to  be 
considered.^  That  the  grantee  used  a  particular  width 
with  the  acquiescence  of  the  grantor  has  been  regarded 
as  controlling  in  this  regard  as  a  x>i'actical  location  of 
the  way.^     And  the   particular  grant  may  call  for   a 

ney,    216    Mass.    248,    103    N.    E.  a  way  three  feet  wide,  the  alley 

6731;    Burnham   v.   Mahoney,    222  being    clearly    defined      by      per- 

Mass.  524,  111  N.  E.  396;    Higbee  manent  structures  as  an  alley  less 

Fishing    Club    v.     Atlantic    City  than  three   feet  wide.   The   refer- 

Electric      Co.,      78      N.      J.      Es.  ence  to  width  was  obviously  not  a 

434,      79      Atl.      326       (way      of  statement  of  the  width  of  the  way 

necessity) ;  Gardner  v.  Webster,  64  to  be  exercised,  but  merely  an  in- 

N-  H.  520,  15  Atl.  144;    McMillan  accurate  description  of  the  place 

V.  MfKee,  129  Tenn.  39,  164  S  W.  where  it  was  to  be  exercised. 
1197   (way  of  necessity).  7.     Bright  v.  Allan,  203  Pa.  386; 

4.  See  Stetson  v.  Curtis,  119  Lipsky  v.  Heller,  199  Mass.  310,  85 
Mass.  266;  Gray  v.  Kelley,  194  N.  E.  453;  Walker  v.  Pierce,  38  Vt. 
Mass.  533,  80  N.  E.  651.  94;   Wiley  v.  Ball,  72  W.  Va.  685, 

5.  Ballard    v.    Titus,    157    Cal.  79   S.   E.   659. 

673,  110  Pac.  118.  8.     Drummond    v.    Foster,    107 

6.  Ballard  v.  Titus,  157  Cal.  Me.  401,  78  Atl.  470;  O'Brien  v. 
673,  110  Pac.  118;   Dewire  v.  Han-       Murphy,   189   Mass.   353,   75  N.   E. 

ley,  79  Conn.  454,  Atl.  573.  ''^'Il-  ^  ^  _,„ 
V  o*  o*  *r,T^t..,  9-  George  V.  Cox,  1 14  Mass.  382. 
In  Stevenson  v.  Stewart,  7  Phila.  iq.  Salisbury  v.  Andrews,  19 
29.3,  it  was  considered  that  a  grant  pick.  (Mass.)  250;  Gerrish  v. 
of  a  right  to  use  an  alley  three  Shattuck.  128  Mass.  571;  Steven- 
feet  wide  did  not  give  a  right  to  son  v.  Stewart,  7  Phila.  (Pa.)  293. 


1338 


Eeal  Peoperty. 


[§  367 


construction  as  intending  a  way  as  already  existent  and 
defined  by  use  or  paving  or  the  like.^<^  A  grant  or  reser- 
vation of  a  right  of  passage  over  a  space  of  a  named 
width  has  been  construed  as  giving  a  right  of  way,  not 
of  that  width,  but  of  merely  a  convenient  width,  to  be 
located  upon  that  space. ^^ 

Change  of  location.     After  the  point  or  place 

at  which,  or  line  along  which,  an  easement  is  to  be  ex- 
ercised has  once  been  fixed,  whether  by  the  express 
terms  of  the  grant,  or  by  agreement  or  acquiescence,  one 
of  the  parties  cannot  change  such  location  without  the 
consent  of  the  other.^^  There  are  in  this  country,  how- 
ever, several  cases  to  the  effect  that  the  location  of 
a  way  may  be  changed  by  oral  agreement  of  the 
parties,  or  agreement  inferred  from  conduct. ^^     These 


But  a  grant  of  a  right  of  way 
over  an  existing  road  does  not 
necessarily  involve  a  right  of 
way  as  to  the  whole  width  of 
the  road,  so  as  to  preclude  the 
erection  of  an  obstruction  on  the 
road  not  interfering  with  the 
reasonable  exercise  of  the  ease- 
ment. Grafton  v.  Moir,  130  N.  Y 
465,  29  N.  E.  974,  27  Am.  St.  Rep. 
533;  Abney  v.  Twombley,  39  R. 
I.  304,  97  Atl.  806;  Clifford  v. 
Hoare,  L.  R.  9  C.  P.  362.  "See 
Gimble  v.  Wehr,  165  Wis.  1,  160 
N.  W.  1080. 

11.  Johnson  v.  Kinnicut,  2 
Gush.  (Mass.)  153;  Short  v.  De- 
vine,  146  Mass.  119,  15  N.  E.  148. 

In  Cleaves  v.  Braman,  103  Me. 
154,  68  Atl.  857,  it  was  held  that 
the  grant  of  a  way  over  "a  piece 
of  land  forty  feet  wide  in  every 
part"  did  not  entitle  the  grantee 
to  use  the  whole  forty  feet  if 
not  needed.  Compare  Tudor  Ice 
Co.     v.      Cunningham,      8      Allen 


(Mass.)    139. 

12.  Richey  v.  Welsh,  149  Ind. 
214,  40  L.  R.  A.  105,  48  N.  E.  1031; 
Jenuison  v.  Walker,  11  Gray, 
(Mass.)  423  (aqueduct) ;  Kesseler 
V.  Bowditch,  223  Mass.  265,  111 
N.  E.  887  (windows) ;  Galloway 
V.  Wilder,  26  Mich.  97;  Jaqui  v. 
Johnson,  27  N.  J.  Eq.  526;  Man- 
ning V.  Port  Reading  R.  Co.,  54 
N.  J.  Eq.  46,  33  Atl.  802;  John- 
son V.  Hahne,  61  N.  J.  Eq.  438, 
49  Atl.  5  (easement  of  light) ; 
Onthank  v.  Lake  Shore  R.  Co., 
71  N.  Y.  174  (aqueduct) ;  Moore- 
Lead  V.  Snyder,  31  Pa.  514  (tail 
race) ;  Garraty  v.  Duffy,  7  R.  I. 
476;  Eureka  Land  Co.  v.  Watts, 
119  Va.  506,  89  S.  E.  968  (way); 
Rhoades  v.  Barnes,  54  Wash.  145, 
102  Pac.  884  (right  to  take  water 
from  stream). 

13.  Durkee  v.  Jones,  27  Colo. 
159,  60  Pac.  618;  Peck  v.  Lloyd, 
38  Conn.  566;  Wynkoop  v.  Burger, 
12  Johns.    (N.  Y.)    222;   Hamilton 


§  367]  Easements.  1339 

cases  do  not  explain  how,  since  an  easement  can  be 
created  only  by  grant  or  its  equivalent,  one  can  ac- 
quire, by  oral  agreement,  an  easement  not  previously 
existing,  even  though  he  does,  in  exchange  therefor, 
relinquish  a  similar  easement  which  he  has  in  the  same 
land.  A  right  of  wa}^  along  line  A  is  not  the  same  ease- 
ment as  a  right  of  way  along  line  B,  even  though  the 
dominant  and  servient  tenements  are  identical  in  the 
two  cases.  There  are  cases  in  this  country,^*  as  in 
England, ^^  in  which  the  view  is  indicated  that  the 
substituted  way  is  to  be  regarded  as  temporary  only, 
so  that  if  such  way  is  withdrawn  by  the  owner  of  the 
servient  tenement,  the  other  has  a  right  to  use  the  old 
way.  If,  however,  there  is  an  intention  permanently  to 
change  the  route,  it  might  well  be  found,  it  would  seem, 
that  the  way  over  the  old  route  is  extinguished  by 
abandonment.^*'  And  in  ease  the  owner  of  the  ease- 
ment makes  expenditures  on  the  servient  tenement  on 
the  faith  of  the  oral  agreement,  he  might  be  regarded 
as  acquiring  an  easement  in  accordance  therewith  by 
estoppel. ''  The  court  would  no  doubt  endeavor  to 
avoid  a  finding  that  the  easement  over  the  original 
route  was  abandoned  unless  it  could  recognize  a  valid 
easement  over  the  new  route. 

V     White,    4    Barb.    (N.    Y.)     60;  gerald,    70    Vt.    468,    41    Atl.    504 

Smith  V.   Barnes,   101  Mass.   275;  Tee  Mary  Helen  Coal  Co.  v.  Hat- 

Chenault    v.    Gravitt,    27    Ky.    L.  field,    75    W.    Va.    148,    83    S.    E. 

Rep.  403,  85  S.  W.  184;   Berkey  &  292. 

Gay  Furniture  Co.  v.  Valley  City  14.     Wright    v.    Willis,    23    Ky. 

Milling    Co.,    194    Mich.    234,    160  Law    Rep.     556,     63     S.     W.    991; 

N.  W.  648;   Rumill  v.  Robbins,  77  Hamilton  v.  White,  5  N.  Y.  9. 

Me.  193   (way  of  necessity) ;  Tar-  15.     Lovell  v.  Smith,  3  C.  B.  N. 

butt  V.  Grant,  94  Me.  371,  47  Atl.  S.    120. 

899;      Smith     v.     Lee,     14     Gray  16.     Crounse  v.  Wemple,  29   N. 

(Mass.)    473;     Gage    v.     Pitts,    8  Y.  540;  Pope  v.  Devereux,  5  Gray 

Allen    (Mass.)    531;    Davidson    v.  iMass.)   409.     Nichols  v.  Peck,  70 

Kretz,   127   Minn.   313,   149  N.   W.  Conn.  439,  40  L.  R.  A.  81,  66  Am. 

652;    Lawton    v.    Tison,    12    Rich.  St.  Rep.  122,  39  Atl.  830. 

(S.    C.)    88;      Stockwell    v.    Fit/.-  17.     Ante,  §  366(c). 


1340 


Real.  Peoperty. 


[§  367 


Party  walls.     The  grant  of  an  easement  to  use 

a  wall  for  party  wall  purposes  prima  facie  involves 
the  privilege  of  increasing  the  height  of  the  wall  in 
order  to  erect  a  higher  building,  if  this  does  not  unduly 
burden  the  wall,  or  in  any  way  operate  to  the  detri- 
ment of  the  adjoining  proprietor,^^  and  subject  to  any 
express  restriction  in  the  grant  as  to  the  height  to 
which  the  easement  mav  extend. ^^ 


18.  Graves  v.  Smith.  87  Ala. 
450,  13  Am.  St.  Rep.  60,  6  So. 
304;  Tate  v.  Fratt,  112  Cal.  613, 
44  Pac.  1061;  Bright  v.  Bacon  & 
Sons,  131  Ky.  848,  116  S.  W.  386, 
20  L.  R.  A.  N.  S.  386;  Field  v. 
Leiter,  118  111.  17,  6  N.  E.  877; 
Everett  v.  Edwards,  149  Mass. 
588,  5  L.  R.  A.  110,  14  Am.  St. 
Rep.  462,  22  N.  E.  52;  Dauen- 
hauer  v.  Devine,  51  Tex.  480,  32 
Am.   Rep.   627. 

That  he  can  raise  the  wall  to 
the  extent  that  it  is  on  his  own 
land,  see  Andrae  v.  Haseltine,  58 
Wis.  395,  46  Am.  Rep.  635.  That 
he  may  raise  a  party  wall  al- 
though it  is  entirely  on  the  land 
of  the  adjacent  owner,  see  Tata 
V.  Fratt,  112  Cal.  613,  44  Pac. 
1061;  Dorsey  v.  Habersack,  84 
Md.   117,  35  Atl.  96. 

It  has  been  held,  in  at  least 
one  case,  that,  upon  using  the 
addition  to  the  wall,  the  other 
proprietor  is  bound  to  contribute 
tart  of  the  cost.  Sanders  v. 
Martin,  2  Lea.  (Tenn.)  213,  31 
Am.  Rep.  598,  And  Citizens  Fire 
Ins.  Co.  V.  Lockridge  &  Ridge- 
way,  132  Ky.  1,  20  L.  R.  A.  (N.  S.) 
226,  116  S.  W.  303,  contains  a 
dictum  to  that  effect.  Contra, 
Allen    V.    Evans,    161    Mass.    485. 


The  assumption  in  Walker  v. 
Stetson,  162  Mass.  86,  that  he  is 
so  bound,  appears  to  be  based 
on  the  language  of  the  original 
agreement  under  which  the  wall 
was  constructed.  The  statute  oc- 
casionally provides  that  he  shall 
be  so  liable.  Howell  v.  Goss,  128 
Iowa,  569,  105  N  W.  61;  Younker 
v.  McCatchcn,  177  Iowa,  634,  L. 
R.  A.  1917B,  949,  159  N.  W.  441. 

The  grant  of  a  right  to  insert 
girders  in  a  wall  or  to  build 
against  the  wall  does  not  con- 
fer party  wall  rights,  so  as  to 
entitle  the  grantee  to  raise  the 
wall.  Moore  v.  Rayner,  58  Md. 
411;  Miller  v.  Stuart,  107  Md.  23, 
68  Atl.  273. 

19.  Frowenfelf  v.  Casey,  139 
CaL  421,  73  Pac.  152;  Henne  v. 
Lankershim,  146  Cal.  70,  79  Pac. 
853;  Calmelet  v.  Sichl,  48  Neb. 
505,  67  N.  W.  467,  58  Am.  St.  Rep. 
700;  Fidelity  Lodge  v.  Bond,  147 
Ind.  437,  45  X.  E.  338,  46  N.  B. 
825. 

It  appears  to  be  the  rule  in 
England  that  if  the  a'jjoining 
owners  are  tenants  in  common  or' 
the  wall,  one  of  them  cannot 
raise  the  wall  without  the  others 
consent.  Watson  v.  Gray,  12  Ch. 
Div.  192.     A  contrary  view  is  as- 


§  367]  Easements.  1341 

« 

All  additiou  thus  made  to  tlio  wall  by  virtue  of 
one's  right  to  use  the  wall  as  a  party  wall  partakes  of 
the  character  of  the  ori2inal  wall,  as  regards  the  right 
of  user  thereof.^*^^  And  the  requirement  which  exists 
in  the  case  of  the  original  wall,  when  placed  on  the 
division  line,  that  it  contain  no  openings,  such  as 
windows, ^^'^  applies  as  well  to  the  addition  placed  upon 
the  wall.2o 

It  has  been  decided  in  one  case  that  when  a  party 
wall  is  erected  one-half  on  each  of  the  two  adjoining 
properties,  one  proprietor  can  extend  his  beams  into 
the  waU  only  so  far  as  the  limits  of  his  own  land,-^  and 
there  are  occasional  intimations  to  this  effect  in  other 
cases.2-  There  cannot  well  be,  however,  any  absolute 
rule  to  this  effect.  A  could  no  doubt  grant  to  B  in 
express  terms  the  privilege  of  extending  his  beams 
entirely  through  the  wall,  and  in  any  case  the  extent  to 
which  beams  can  be  inserted  is  a  question  of  the  con- 
struction of  the  "party  wall  agreement,"  that  is,  of  the 
grant  of  the  easement,  in  each  particular  case,  the 
usage  of  builders  in  that  community  being  a  weighty 
consideration  in  this  connection.  If  the  wall  is  en- 
tirely on  the  land  of  one  proprietor,  the  adjoining  pro- 
prietor, having  a  party  wall  easement  therein,  has  al- 
most necessarily  the  i)rivilege  of  extending  lieams  in  the 

serted    in    Wallis    v.    First    Nat.  Iowa,    634,    L.    R.    A.    1917B,    949. 

Bank    of    Racine,    155    Wis.    305,  159    N.    W.    441    (statute). 

143  N.  W.  670.  19b.     I'o.^t,     this     section,     note 

19a.     Graves  v.   Smith,   87   Ala..  31. 

450,  13  Am.  St.  Rep.  60;  Allen  v.  20.     Graves    v.    Smith.    87    Ala. 

Evans.   161   Mass.   485.    See  Field  450,    13    Am.    St.    Rep,   60,    6    So. 

V   Leiter,  118  111.  17.  304;    Dauenhauer    v.    Devine,    51 

For  cases  construing  a  contract  Tex.  480,  32  Am.  Rep.  627. 
as   requiring   contribution   to   the  21.     Lederer  &  Strauss  v.  Col- 
cost  of  such  an  addition  only  for  onial    Investment   Co..    130    Iowa. 
£.   building    subsequently    erected,  157,   8   Ann.   Cas.    317.   lOfi   X.    W. 
see  Shaw  v.  Hitchcock,  119  Mass.  357. 

254;  Fox  v.  Mission  Free  School.  22.     McMinn  v.  Karter,  116  Ala. 

120  Mo.   349,  25  S.  W.  172.     And  390,  22  So.  17:  Walker  v.  Stetson, 

see    Tounker    v.    McCutchen,    177  162  Mass.  86,  38  N.  E.  IS. 

2  R.  P.— 10 


1342 


Real  Peopeety. 


[§  367 


wall  beyond  the  limits  of  his  own  land,  and  there  is  no 
legal  objection  to  his  having  that  privilege  when  the 
wall  is  ])artially  on  his  own  land. 

One  of  the  two  adjoining  owners  cannot  ordinarily 
remove  or  impair  the  party  wall,^^  except  as  such  re- 
moval or  impairment  is  merely  temporary  and  for  the 
'purpose  of  strengthening  the  wall  or  substituting  there- 
for another  wall  more  suitable  for  his  purposes.^^  Even 
in  the  latter  case  he  is  liable  for  any  damage  caused 
to  the  other  by  his  failure  properly  to  support  and 
protect  the  latter 's  property  during  the  operation,^^ 
or,  if  it  is  left  to  the  other  to  protect  his  property,  the 
latter  is  entitled  to  be  indemnified  the  necessary  ex- 
penses of  such  protection.^^  It  does  not  seem  that  one 
altering  a  party  wall  by  raising  it  or  otherwise  is  ab- 
solutely liable  for  any  injury  which  may  result  to  the 
other  in  the  course  of  the  work.  He  is  merely  bound 
to  use  diligence  to  prevent  such  injury.^^ 


23.  Nippert  v.  Warneke,  125 
Cal.  501.  61  Pac.  270; 
Montgomery  v.  Trustees  of  Ma- 
sonic Han,  70  Ga.  38;  Schile  v. 
Brokhahus.  80  N.  Y.  619;  Briggs 
V.  Klosse,  5  Ind.  App.  129,  51  Am. 
St.  Rep.  238,  31  N.  E.  208;  Baugh- 
er  V.  Wilkins,  16  Md.  35,  77  Am. 
Dec.  279.  But  see  Hieatt  v.  Mor- 
ris. 10  Ohio  St.  523,  78  Am.  Dec. 
280.  Clemens  v.  Speed,  93  Ky. 
284,  19  L.  R.  A.  240,  19  S.  W. 
660;  WiUiamson  Inv.  Co.  v.  Wil- 
liamson. 96  \\Tash.  529,  165  Pac. 
385. 

24.  Eno  V  Del  Vecchio,  4 
Duer  (N.  Y.)  53,  6  Duer,  17; 
Putzel  V.  Drovers  &  M.  Nat.  Bank, 
78  Md.  349,  44  Am.  St.  Rep.  298, 
22  L.  R.  A.  632,  28  Atl.  276;  Lex- 
ington Lodge  V.  Beal,  94  Miss.  521, 
49  So.  833;  Mann  v.  Riegler,  33 
Ky.  L.   Rep.  774,  111  S.  W.  300; 


Bellenot  v.  Laube,  104  Va.  842,  52 
S.  E.  698.  That  he  cannot  sub- 
stitute another  wall,  see  Partridge 
V.  Lyon,  67  Hun,  29,  21  N.  Y. 
Supp.  848. 

In  some  states  the  statute 
authorizes  him  to  make  alter- 
ations in  the  wall  for  his  own 
purposes.  Fowler  v  Saks,  7 
Mackey  (D.  C.)  570,  7  L.  R.  A. 
649;  Haine  v.  ;Merrick,  41  La. 
Ann.  194.  Evans  v.  Jayne,  23  Pa. 
34. 

25.  Eno  V.  Del  Vecchio,  4 
Duer  (N.  Y.)   53,  6  Duer.  17. 

26.  Putzel  V.  Drovers  &  M. 
Nat.  Bank,  78  M'd.  349,  44  Am.  St. 
Rep.  298,  22  L.  R.  A.  632,  28  Atl. 
276. 

27.  Negus  V.  Becker,  143  N.  \^ 
303,  25  L.  R.  A.  667,  42  Am.  St. 
Rep.  68,  38  N.  E.  290,  explaining 
Brooks    V.    Curtis,    50    N.    Y.    639, 


§  3G7]  Easements.  1343 

If  the  wall  is  in  a  ruinous  or  unsafe  condition,  one 
proprietor  may  repair  it  or  replace  it  by  a  new  wall, 
and  he  is  not  liable  for  the  cost  of  protecting  the  ad- 
joining property  during  the  prosecution  of  the  work, 
or  for  any  loss  necessarily  incident  thereto,  as  of 
business  or  rent,-^  though  he  is  liable  for  any  injury 
caused  by  negligence  in  the  doing  of  the  work.-^ 

There  is  at  least  one.  decision  to  the  effect  that,  if 
the  party  wall  becomes  unsafe  or  ruinous,  it  may  be  re- 
built by  one  of  the  adjoining  owners,  and  the  other  will 
be  compelled  to  pay  part  of  the  cost,-^^ 

A  grant  of  the  privilege  of  placing  on  the  grantor's 
land  a  wall  to  be  used  as  a  party  wall  does  not 
ordinarily  enable  the  grantee  to  place  thereon  a  wall 
with  openings,  such  as  windows,  therein,  the  expression 
party  wall  meaning  prima  facie  a  solid  wall.^^  A  right 
to  have  openings  in  the  wall  may,  however,  be  in- 
cluded in  the  grant,^^  or  rather,  as  the  owner  of  the 
land  may  grant  the  privilege  of  placing  or  maintaining 

10  Am.  Rep.  545;  Lexington.  Lodge  401;  Bellenot  v.  Laube's  Ex'r,  104 

V.  Beal,  94  Miss.  521,  49  So.  833.  Va.    842,    52    S.    E.    698;    Sanders 

See  Putzel  v.  Drovers  &  M.  Nat.  v.  Martin,  2  Lea   (Tenn.)  213. 
Bank,  78  Md.  349,  44  Am.  St.  Rep.  31.     Bartley    v.    Spaulding,    21 

298,  22  L.  R.  A.  632,  28  Atl.  275,  Dist.  Col.  47;  Kuh  v.  O'Reilly,  261 

and  Heine  v.  Merrick,  41  La.  Ann.  111.   437,   104    N.   E.   5;    Bonney  v. 

194,  5  So.  760,  6  So.  637.    Compare  Greenwood,    96    Me.    335,    52    Atl. 

Fleming  v.  Cohen,  186  Mass.  323,  786;    Coggins  &   Owens  v.  Carey, 

104    Am.    St.    Rep.    572,    71    N.    E.  106   Md.   204,   10  L.   R.  A.    (N.   S.) 

563.  1191,    124    Am.    St.    Rep.    468,    66 

28.  Partridge  V.  Gilbert,  15  N.  Atl.  673;  Norraille  v.  Gill,  159 
Y.  601,  69  Am.  Dec.  632;  Maypole  Mass.  427,  38  Am.  St.  Rep.  441, 
V.  Forsyth,  44  111.  App.  494;  Craw-  34  N.  E.  94;  Harber  v.  Evans,  101 
Shaw  V.  Sumner,  56  Mo.  517;  Hoff-  Mo.  661,  10  L.  R.  A.  41,  20  Am. 
man  v.  Kuhn,  57  Miss.  746,  34  Am.  St.  Rep.  646,  14  S.  W.  750;  De 
Rep.  491.  Baun  v.  Moore,  167  N.  Y.  598,  60 

29.  Negus  V.  Becker,  143  N.  Y  N.  E.  1110;  Cutting  v.  Stokes,  72 
303;  Crawshaw  v.  Sumner,  56  Mo.  Hun.  (N.  Y.)  376,  25  N.  Y.  Supp. 
517.  365;    Holden  v.  Tidwell,  37  OkU. 

30.  Campbell  v.  Mesnr,  4  553,  133  Pac.  54.  Dauenhauer  v. 
Johns.  Ch.  (N.  Y.)  334.  See  How/e  Devine,  51  Tex.  480,  32  Am.  Rep. 
v.  Whitehead,  93  Miss.  578,  46  So.  627. 


1344  Eeal  Pkoperty.  [§  368 

a  solid  wall  on  Ms  land,  so  be  may  grant  the  privilege 
of  placing  or  maintaining  thereon  a  wall  with  open- 
ings.^^  It  has  been  said  that  the  right  to  have  openings 
in  a  partition  wall  may  be  acquired  by  prescription,^^ 
but  this  appears  to  be  questionable.^^ 

The  grant  of  the  j)rivilege  of  jjlacing  or  maintain- 
ing a  wall  in  part  on  one's  land  may  expressly  include 
a  right  to  have  flues  therein.^^  Or  there  may  be  an 
implied  grant  of  such  a  right  based  on  the  existence  of 
the  flues  before  the  severance  of  ownership  of  the  two 
properties."'  Whether  the  grant  of  the  privilege  of 
erecting  a  wall,  or  of  utilizing  it,  for  party  wall  pur- 
poses, involves  a  right  to  maintain  flues  therein,  is  a 
question  of  construction,  in  the  solution  of  which  the 
practice  of  builders  in  that  community  as  regards  the 
placing  of  flues  in  party  walls  is  entitled  to  considera- 
tion.^^ 

§  368.  Easements  created  by  prescription.  In  the 
case  of  prescriptive  easements,  the  mode  and  extent 
of  user  of  the  servient  tenement  permissible  are 
determined,  generally  speaking,  by  the  mode  and  extent 

32.  Grimley   v.    Davidson,    13?>  37.     Ingals    v.    Plamandon,    75 
111.  116,  24  N.  E.  439;   Weigmann  111.    118;    De  Baun    v.   Moore,    167 
V.  Jones,  163  Pa.  330,  30  Atl.  198;  X.   Y.   598,   60   N.   E.   1110. 
Reynolds  v.  Union  Sav.  Bank,  155  In    Koolbeck    v.    Baaighn,    126 
Iowa,  519,  136  N.  W.  529.  Iowa,    194,    it    was    held    that    in. 

33.  Lengyel  v.  Meyer,  70  N.  J.  view  of  a  statutory  provision  that 
Eq.  501,  62  Atl.  548;  Dunscomb  the  builder  of  the  wall  shall 
V.  Randolph,  107  Tenn.  89,  89  Am.  insert  flues  at  the  request  of 
St.  Rep.  915,  64  S.  W.  21;  Stein  v.  the  other,  such  other,  having  failed 
Bernsforj,  108  Minn.  177,  121  N.  to  make  such  request,  cannot 
W.  879.  Hammann  v.  Jordan,  129  utilize  flues  placed  in  the  wall  by 
N.  Y.  61,  29  N.  E.  294.  the    buil'der,    though    they    extend 

34.  Graves    v.    Smith,    87    Ala.  over  the  limits  of  his  lot. 

450,   5   L.   R.  A.   298,  13   Am.   St.          38.     See    Hammann    v.    Jordan, 

Rep.  60,  6  So.  308.  129    N.   Y.    61,   29    N.    E.    294;    De 

35.  Post  §  517.  Baun  v.  Moore,  167  N.  Y.  598,  60 

36.  Pier   v.    Salot,  —    (Iowa),       N.   E.   1110. 
— ,  107  N.  W.  420. 


§  369]  Easements.  1345 

of  the  user  during  the  prescriptive  periocl.^*^  Accord- 
ingly a  prescriptive  right  to  divert  or  pollute  water 
enables  one  to  divert  or  pollute  it  to  the  extent  to  which 
the  diversion  or  pollution  extended  during  such  peri- 
od,^ ^  and  one  having  a  prescriptive  right  to  overflow 
another's  land  can  overflow  it  to  the  extent  to  w^hich  he 
was  accustomed  to  overflow  it  during  the  prescriptive 
period.^"*  But  a  question  of  very  considerable  difficulty 
may  arise  by  reason  of  the  assertion,  by  the  person 
entitled  to  the  easement,  of  a  right  of  user  of  the  same 
general  character  and  extent  as  the  prescriptive  user, 
but  varying  in  some  degree  therefrom.  This  matter 
is  considered  elsewhere  in  connection  with  the  subject 
of  prescription.*"'^ 

§  369.     Effect  of  change  in  dominant  tenement.  The 

fact  that,  after  the  making  of  a  grant  of  an  easement, 
there  is  a  change  in  the  mode  in  which  the  dominant 
tenement  is  utilized,  so  that  as  a  result  thereof  the 
easement  is  more  constantly  exercised,  has  usually 
been  regarded  as  not  aifecting  the  existence  of  the 
easement.*^      Occasionally,    however,    a    different    view 

39.  Wright  v.  Moore,  38  Ala.  lisle  v.  Cooper,  21  N.  J.  Eq.  576; 
593,  82  Am.  Dec.  731;  Postle-  Gilford  v.  WMnnipiseogee  Lake 
thwaite  v.  Payne,  8  Ind.  104;  Bar-  Co.,  52  N.  H.  262;  Tucker  v. 
ry  V.  Edlavitch,  84  Md.  95,  33  L.  Salem  Flouring  Mills  Co.,  13  Ore. 
R.  A.  294,  35  Atl.  170;  Prentice  v.  28,  7  Pa-o.  53.  Sabine  v.  Johnson, 
Geiger,    74    N.    Y.    341;    Lewis    v.  35  Wis.  185. 

New  York   etc.   R.  Co.,  162  N.  Y.  40b.     Post,    §    531. 

202,  56  N.  B.  540.  Elliott  v.  Rhett,  41.     Greist  v.  Amrhyn,  80  Conn. 

5    Rich.    L.    (S.    C.)    405,    57    Am.  280,  68  Atl.  521  (sr'm?>Zf) ;  Randall 

Dec.   750;    Arbuckle   v.    Ward,   29  v.  Grant,  210  Mass.  302,  96  N.  E. 

Vt.  43.  672;  Parsons  v.  New  York  N.  H.  & 

40.  Crossley  v.  Lightowler,  2  H.  R.  Co.,  216  Mass.  269.  103  N. 
Ch.  App.  478;  McCallum  v.  Ger-  E.  693;  Abbott  v.  Butler,  59  N.  H. 
mantown  Water  Co.,  54  Pa.  St.  317;  Kretz  v.  Fireproof  Storage 
40,  93  Am.  Dec.  656;  Middlesex  Co.,  127  Minn.  304,  149  N.  W.  648: 
Co.  V.  City  of  Lowell,  149  Mass.  Gillespie  v.  Weinberg,  148  N.  Y. 
509,  21  N.  E.  872.  238,  42  N.  E.  676,  P'lint  v.  Bacon, 

40a.  Turner  v.  Hart,  71  Mich.  13  Hun.  (N.  Y.)  454;  Benner  v. 
128,    15    Am.    St.    Rep.    243;    Car-      Junker,   190   Pa.   423,  43   Atl.   72; 


1346 


Eeal  Pkoperty, 


[§  369 


was  adopted  in  the  particular  case,^^  It  is,  properly 
speaking,  a  question  of  the  construction  of  the  grant, 
tliat  is,  of  whether  the  parties  thereto  intended  that 
the  easement  should  ]>e  exercised  irrespective  of  a 
change  in  the  user  of  the  dominant  tenement,  and,  by 
the  weight  of  authority,  the  presumption  appears  to  be, 
as  above  indicated,  that  such  was  the  intention.  The 
increase  of  the  burden  on  the  servient  tenement  is,  it 
would  seem,  immaterial,  except  as  it  may  render  it 
less  probable  that  such  a  change  of  user  was  within  the 
contemplation  of  the  parties  at  the  time  of  the  grant. 

In  accordance  with  the  view  ordinarily  taken,  that 
a  change  in  the  mode  of  utilizing  the  dominant  tene- 
ment does  not  affect  the  existence  of  the  easement,  is 
the  view  generally  adopted,  that  upon  the  subsequent 
subdivision  of  the  original  dominant  tenement,  a  right 
of  way  is  appurtenant  to  each  and  every  part.^^     And 


Frazier  v.  Berry,  4  R.  I.  440; 
United  Land  Company  v.  Great 
Eastern.  Railway  Co.,  L.  R.  10  C'n. 
586;  Newcomen  v.  Coulson,  L.  R. 
5  Ch.  Div.  133;  Finch  v.  Great 
Western  R.  Co.,  L.  R.  5  Ex.  D. 
254;  White  v.  Grand  Hotel,  Eiast- 
bourne,  Limited   (1913)  1  Ch.  113. 

42.  It  was  held  that,  where 
there  was  a  grant  of  a  way  to  a 
loft,  and  the  space  or  opening 
under  the  loft  then  used  as  a 
wood  house,  the  way  no  longer 
existed  after  the  open  space  hari 
been  built  over  and  changed  into 
a  dwelling  house.  Allan  v.  Gom- 
me,  11  Adol.  &  E.  759.  This  de- 
cision was,  however,  questioned 
by  Parke,  B.,  in  Henning  v.  Bur- 
net, 8  Exch.  187. 

In  Wood  V.  Saunders,  10  Ch. 
App.  582,  it  was  held  that  one 
to  whom  was  granted  a  right  of 
drainage    through    adjacent    land 


for  the  benefit  of  land  on  which 
was  a  private  residence  at  the 
time  of  the  grant  could  not  ex- 
ercise the  right  for  the  benefit 
of  large  additions  made  to  the 
house  for  the  purpose  of  changing 
it  into  a  sanitarium.  See  also 
Great  Western  Railway  v.  Talbot 
(1902)  2  Ch.  759. 

In  Goodwillie  v.  Commonwealth 
Electric  Co.,  241  111.  42,  89  X.  E. 
272,  it  was  held  that  the  grant 
of  a  right  to  use  a  switch  track, 
in  favor  of  owners  of  a  lumber 
yard,  did  not  justify  the  use  of 
the  track  for  carrying  coal  to  an 
electric  plant  thereafter  con- 
structed on  the  site  of  the  lumber 
yard. 

43.  Currier  v.  Howes,  103  Cal. 
431,  37  Pac.  521;  Sweeney  v.  Lan- 
ders Frary  &  Clark,  80  Conn.  575, 
69  Atl.  566;  Durkee  v.  Jones,  27 
Colo.    159,  60   Paa   618;    Brossart 


^  369] 


Easements. 


1347 


the  same  rule  has  been  applied  in  connection  with  an 
easement  of  another  character.^^ 

An  easement  of  necessity  has  been  regarded  as  not 
limited,  as  regards  its  utilization,  by  the  mode  in  which 
the  dominant  tenement  was  used  at  the  time  of  the 
creation  of  the  right,  but  as  available  for  any  use 
incident  to  a  change  in  the  use  of  such  tenement.^  ^ 
And  accordingly  a  way  of  necessity  has  been  regarded 
as  available  to  each  one  of  various  grantees  of  a  part 
of  the  tenement  to  which  the  way  was  originally  ap- 
purtenant.^^ 

In  the  case  of  a  prescriptive  easement,  the  question 
whether  a  change  in  the  dominant  tenement  atfects 
the  right  to  exercise  the  easement  depends,  in  a  general 
way,  upon  whether  the  effect  of  the  change  is  materially 
to  increase  the  burden  upon  the  ser^dent  tenement  or 
alter  the  character  of  the  user  thereof.'*''^ 


V.  Corlett,  27  Iowa,  288;  Garrison 
V.  Ru'^d,  19  111.  559;  Underwood  v. 
Carney,  1  Cush.  (Mass.)  285;  Dur- 
kin  V.  Cobleigh,  156  Mass.  108, 
17  L.  R.  A.  270,  32  Am.  St.  Rep. 
436,  30  N.  E.  474;  Forbes  v.  Com- 
monwealth, 172  Mass.  289,  52  N. 
E.  511.  Moore  v.  White,  159  Mich. 
460,  124  N.  W.  62;  Dawson  v.  St. 
Paul  F.  &  M.  Ins.  Co.,  15  Minn. 
136.  (Gil  102),  2  Am.  Rep.  109; 
Diocese  of  Trenton  v.  Toman,  74 
N.  J.  Eq.  702,  70  Atl.  606 ;  Lansing 
V.  Wiswwall,  5  Denio  (N.  Y.)  213. 
Gunson  v.  Healy,  100  Pa.  42; 
Ehret  v.  Gunn,  166  Pa.  384,  31 
Atl.  200;  Dee  v.  King,  77  Vt. 
230,  68  L.  R.  A.  860.  59  Atl.  839; 
Linkenhofer  v.  Grayhill,  80  Va. 
835;  Newcomen  v.  Coulson,  L.  R. 
f.  Ch.  Div.  141.  A  different  rule 
"would  force  every  person  who 
has  a  right  of  way  to  preserve 
his   property   entire,   in   order   to 


preserve  his  passage."  Tilgh- 
man,  C.  J.,  in  Watson  v.  Bioren, 
1  S.  &  R.  (Pa.)  227,  7  Am.  Dec. 
617. 

44.  Harris  v.  Drewe,  2  B.  & 
Ad.  164  (church  pew) ;  Blood 
V.  Millard,  172  Mass.  65,  51  N. 
E.  527  (right  to  take  water  from 
spring) ;  Hills  v.  Miller,  3  Paige 
(N.  Y.)  254,  24  Am.  ,Dec.  218 
(right  to  have  strip  of  land  left 
vacant). 

45.  Myers  v.  Dunn,  49  Conn. 
71;  Whitticr  v.  Winkley,  62  N.  H. 
3^8;  Crotty  v.  New  River  &  Poca- 
hontas Coal  Co.,  72  W.  Va.  68, 
78  S.  E.  233;  Contra.  Corporation 
of  London  v.  Riggs,  L.  B.  13,  Ch. 
Div.  798. 

46.  Erie  R.  Co.  v.  S.  H.  Klein- 
man  Realty  Co.,  92  Ohio  St.  96, 
110  N.  E.  527. 

46a.    Post,  §  531. 


1M8  Real  Peopeety.  [§  370 

§  370.  Alterations  and  repairs.  Tlie  owner  of  the 
easement  may  enter  on  the  servient  tenement  and  make 
such  changes  therein  as  are  necessary  for  the  proper 
exercise  of  the  easement.^'^  Thus,  one  having  a  right 
of  way  may  prepare  the  land  for  its  exercise,  according 
to  the  nature  of  the  way,  that  is,  according  as  it  may 
be  a  foot  way,  a  horseway,  or  a  way  for  all  teams  and 
carriages.^^  And  he  may  subsequently  make  alterations 
in  the  servient  tenement  in  so  far  as  this  may  be  neces- 
sitated by  a  change  of  conditions  for  which  he  is  not 
responsible.^^  He  cannot,  however,  make  alterations  in 
the  servient  tenement,  which  are  not  necessary  for  the 
exercise  of  the  easement,  even  though  they  conduce  to 
tlie  convenience  of  its  exercise,  if  such  alterations  will 
injuriously   affect   the    servient   tenement.^^ 

The  o^\Tier  of  the  easement  may  likewise  enter  on 
the  servient  tenement  in  order  to  make  any  repairs 
necessary  to  the  exercise  of  the  easement,  and  may 
make  use  of  the  servient  tenement  for  this  purpose  to  a 
reasonable  extent  ;^^    and  he  may  even  prevent  the  con- 

47.  Newcomen    v.    Coulson,    5       Y.  37,  7  L.  R.  A.  226,  16  Am.  St. 
Ch.   Div.   133;    Burris  v.   People's       Rep.  800,  23  N.  E.  442. 

Ditch    Co.,   104    Cal.    248,   37   Pac.  49.     Nichols   v.   Peck,   70   Conn. 

922;    White    v.    Eagle    &    Phenix  439,   40   L.   R.   A.    81,    66   Am.   St. 

Hotel    Co.,    68    N.    H.    38,    34   Atl.  Rep.   122,   39   Atl.   493;    Pinlinson 

€72;    Freeman  v.  Sayre,   48  N.  J.  v.  Porter,  L.  R.  10  Q.  B.  188. 

Law,  37;  Herman  v.  Roberts,  119  50.     Capers  v.  McKee,  1  Strob. 

N.  Y.  37,  7  L.  R.  A.  226,  16  Am.  L.     (S.    Car.)     164;     McMillen    v. 

St.  Rep    ;^00,  23  N.  E.  442;   Ham-  Crouin,  13  Hun    (N.  Y.)  68;  Knud- 

mond    V.    Hammond,    258    Pa.    51,  ion    v.    Frost,    56    Colo.    530,    139 

■:01  Atl    855;  Wallis  v.  First  Nat.  Pac.  533;   Hotchkiss  v.  Young,  42 

Bank  of  Racine,  155  Wis.  306,  143  Ore.    446,  '71   Pac.    324;    Redemp- 

N.  W.  (570.  torists   v.  Wenig,   79  Md.   348,   29 

48.  fjenhouse  v.  Christian,  1  Atl.  667;  Draper  v.  Varnerin,  220 
Tei-m.  Rep.  560;  Newcomen  v.  Mass.  67,  107  N.  E.  350. 
Coulsen,  5  Ch.  Div.  133;  Knudson  51.  Pomfret  v.  Ricroft,  1  Wms. 
V.  Frost,  56  Colo.  530,  139  Pac.  Saund.  323,  note  6;  Pico  v.  Coli- 
533;  White  v.  Eagle  &  Phenix  nas,  32  Cal.  578;  Lamott  v. 
Hotel  Co.,  68  N.  H.  38,  34  Atl.  Ewers,  106  Ind.  310,  55  Am.  St. 
672;    Herman   v.   Roberts,   119   N.  Rep.  746,  6  N.  E.  636;   Hammond 


§  370] 


Easements. 


1349 


struction  of  a  building  necessary  to  the  beneficial  use  of 
the  land,  if  the  building  would  prevent  the  making  of 
repairs.^^ 

In  the  absence  of  an  express  stipulation  or  prescrip- 
tive obligation  to  that  effect,  there  is  no  requirement 
that  the  owner  of  the  servient  tenement  put  or  keep 
it  in  proper  condition  for  the  exercise  of  the  easement, 
though  he  must  not  actively  obstruct  its  exercise.^''  So 
the  fact  that  the  owner  of  a  building  has  a  right  of 
support  from  an  adjoining  building  does  not  entitle 
him  to  demand  that  the  owner  of  the  latter  keep  it  in 
repair  so  as  to  furnish  sufficient  support,^^  nor  can  the 
owner  of  an  upper  floor  compel  the  repair  of  the  lower 
floor  bv  the  owner  thereof.^^ 


V.  Woodman,  41  Me.  177,  66  Am. 
Dec.  219;  Prescott  v.  White,  21 
Pick.  (Mass.)  341 ;  Brown  v. 
Stone,  10  Gray  (Mass.)  61,  69  Am. 
Dec.  303;  McMillan  v.  Cronin,  75 
N.  Y.  474;  Thompson  v.  Uglow, 
4  Ore.  369;  Walker  v.  Pierce,  38 
Vt.   94. 

In  Kepler  v.  Border,  179  Iowa, 
218,  161  N.  W.  302,  where  sev- 
eral different  persons  had  the 
right  to  use  a  private  road,  the 
court  made  an  order  apportioning 
the  cost  of  repairs  as  between 
them. 

52.  Goodhart  v.  Kyeit,  25  Ch. 
Dlv.  182. 

53.  Nichols  v.  Peck,  70  Conn. 
439,  40  L.  R.  A.  81,  66  Am.  St. 
Rep.  122,  39  Atl.  493;  Hastings 
V.  Chicago,  R.  I.  &  P.  R.  Co.,  148 
Iowa,  390,  126  N.  W.  786;  Brid- 
v.'ell  V.  Neltner,  173  Ky.  847,  191 
S.  W.  633;  Gillis  v.  Nelson,  16  La. 
Ann.  275;  Ballard  v.  Butler,  30 
Me.  94;  Rowe  v.  Nally,  81  Md. 
367,  32  Atl.  198;  Doane  v.  Bad- 
ger,    12     Mass.     65;     Harvey     v. 


Crane,  85  Mich.  316,  12  L.  R.  A. 
601,  48  N.  W.  582;  Wynkoop  v. 
Burger,  12  Johns.  (N.  Y.)  222: 
Herman  v.  Roberts,  119  N.  Y.  371: 
7  L.  R.  A.  226,  16  Am.  St.  Rep. 
SCO,  23  N.  E.  442. 

So  he  is  under  no  obligation 
to  fence  off  a  way  to  which  his 
land  is  subject.  Brill  v.  Brill,  108 
N.  Y.  511,  15  N.  E.  538;  Wiley 
v.  Ball,  72  W.  Va.  685,  79  S.  E. 
659,  and  in  the  case  of  a  ditch 
for  the  supply  of  drinking  water, 
it  is  not  prima  facie  for  the 
owner  of  the  servient  tenement 
to  fence  off  the  ditch  so  that  the 
water  will  not  be  polluted  by 
his  cattle.  Bellevue  v.  Daly,  14 
Idaho,  545,  15  L.  R.  A.  (N.  S.) 
992,  94  Pac.  103^.  And  see  Mc- 
Coy V.  Chicago,  M.  &  St.  P.  R. 
Co.,  176  Iowa,  139,  155  N.  W. 
995. 

54.  Pierce  v.  Dyer,  109  Mass. 
374,  12  Am.  Rep.  716. 

55.  Tenant  v.  Goldwin,  1  Salk. 
360,  2  Ld.  Raym.  1089;  Colebeck 
v.  Girdlers  Co.,  1  Q.  B.   Div.  234; 


1350  Real  Property.  [§  370 

That  one  has  party  wall  rights  in  a  wall  or  a  part 
of  a  wall  imposes  no  obligation  on  him,  or  on  the  owner 
of  the  wall,  to  reconstruct  it  when  destroyed  by  fire  or 
other  accidental  cause. "^^^  And  it  would  seem  question- 
able, on  principle,  whether  one  person  entitled  to  use 
a  party  wall  should  have  contribution  from  the  other 
on  account  of  expenditures  for  repairs,  additions  or 
reconstruction,  undertaken  by  the  former  for  his  own 
benefit,  though  enuring  to  the  benefit  of  the  latter.^-^'' 

The  question  of  the  liability  for  damage  caused 
by  the  failure  to  repair  or  j^roperly  to  construct  an 
appliance  or  structure  on  the  servient  tenement,  the 
purpose  of  which  is  to  make  the  exercise  of  the  easement 
feasible  or  convenient,  would  seem  ordinarily  to  de- 
pend on  who  is  in  control  thereof.  If  the  owner  of  the 
dominant  tenement,  for  instance,  constructs  a  con- 
duit or  ditch  on  the  servient  tenement  of  which  he 
retains  control,  he  is  liable,  it  would  seem,  if,  by  reason 
of  failure  to  keep  it  in  repair,  the  servient  tenement  isi 
flooded,^*^  and  so  it  has  been  held  that  he  is  liable  if 
damage  accrues  to  cattle  belonging  to  the  owner  of 
the  servient  tenement  by  reason  of  failure  to  protect 
them  from  the  danger  of  falling  into  a  ''washout"  oc- 
curring in  a  ditch  constructed  by  him.^^     On  the  other 

Pierce  v.  Dyer,  109  Mass.  374,  12  55b.     But  that  there  is  a  right 

Am.  Rep.  716;  Jackson  v.  Bruns,  of  contribution.    Howze  v.  White- 

129  Iowa,  616,  3  L.  R.  A.   (N.  S.)  head,    93    Miss.    578,    46    So.    401; 

510,    106    N.    W.    1;     Gale,    Ease-  Campbell  v.  Mesier,  4  Johns.  Ch. 

ments    (9th    Ed.)    479.       But    see  334;     Sanders    v.    Martin,    2    Lea 

dictum    in   Graves   v,    Berdan.    26  (Tenn.)       213.          Contr<i,      Anti- 

N.  Y.  498.  marchi's  Exc'r  v.  Rugsell,  63  Ala. 

55a.     Antomarchi's       Ex'r       v.  356,    35   Am.   Rep.    40.     See   cita- 

Russell,  63  Ala.  356,  35  Am.  Rep.  tions,  ante,  §  356,  notes  64-66. 

40;    Partridge    v.    Gilbert,    15    N.  56.     Egremont    v.    Pulman,    M. 

Y.    601,    69    Am.    Dec.    632;     Odd  &  M.  404.     See  Williams  v.  Grou- 

Fellows'    Hall    Ass'n    v.    Hegele,  cott,   4   Best  &   S.    199;    Jones   v. 

24  Ore.  16,  32  Pac.   679;    Duncan  Fritchard    (1908),  1  Ch,  630. 

V.  Rodecker,  90  Wis.  1,  62  N.  W.  57.    Big     Goose     and     Beaver 

533.  Ditch  Co.  v.  Morrow,  8  Wyo.  547, 


§  371]  Easements.  1351 ' 

hand,  it  is  well  recognized  that  while  the  tenant  of  a 
room  in  an  office  building  has  an  easement  in  the  halls 
and  elevators  for  the  purpose  of  access  to  his  room,  the 
owner  of  the  building,  as  having  control  of  the  halls 
and  elevators,  is  the  one  liable  for  injuries  caused  by 
defects  therein.^^  And  one  whose  land  is  crossed  by  a 
railroad  right  of  way  is  not  liable  for  personal  injuries 
caused  to  another  by  reason  of  defective  railway  equip- 
ment or  negligent  management  thereof.^^'^ 

§  371.  Interference  with  user.  Any  act  which  inr 
terferes  with  the  proper  exercise  of  the  easement, 
whether  done  by  the  o^vner  of  the  servient  tenement,  or 
by  a  third  person,  is  a  ''disturbance"  or  ''obstruction" 
of  the  easement,  for  which  an  action  will  lie.  A  dis- 
turbance of  the  easement  is  usually  by  the  owner  of  the 
servient  tenement,  and  not  by  a  third  person,  and  what 
constitutes  a  disturbance  by  him  may  be  best  defined 
by  stating  what  acts  he  may  do  without  being  guilty  of 
a  disturbance. 

The  owner  of  the  servient  tenement  may  make  any 
use  thereof,  which  is  not  calculated  to  interfere  with 
the  exercise  of  the  easement.^^  Accordingly,  it  has  been 
held  that  one  whose  land  is  subject  to  an  easement  of 
flowage  in  favor  of  another  may  take  ice  formed  on  the 
water,^^^  unless  this  would  interfere  with  the  purpose 

80  Am.  St.  Rep.  955,  59  Pac.  159.       N.  W.  582;    Pomeroy  v.  Salt  Co.. 

58.  See  1  Tiffany,  Landlord  &  37  Ohio  St.  520;  Smith  v.  Row- 
Ten.,  §§  89,  90.  land,    243    Pa.    306,    90    Atl.    183: 

58a.     Earley  v.   Hall,   89    Conn.  Abney  v.  Twombly,  39  R.   I.  304, 

GOG,  95  Atl.  2.  97    Atl.    806;     Southern    Railway 

59.  Long  V.  Gill,  80  Ala.  408:  Co.  v.  Beaudrot,  63  S.  C.  266,  41 
Rice  V.  Ford  (Ky.),  120  S.  W.  S.  E.  299;  Rex  v.  Joliffe,  2  Term. 
288;  Kansas  Cent.  R.  Co.  v.  Allen,  Rep.   95. 

22   Kan.    285,   31   Am.   Rep.    190;  59a.     Stevens  v.  Kelley,  78  Me. 

Chandler  v.  Goodridge,  23  Me.  78;  445,  57  Am.  Rep.  913,  6  Atl.  868; 

Kendall   v.   Hardy,   208   Mass.   20,  Paine   v.   Woods,   108    Mass.    160; 

94   N.   E.    254;    Harvey   v.    Crane,  Eidemuller  Ice  Co.  v.  Guthrie,  42 

85  Mich.  316,  12  L.  R.  A.  601,  48  Neb.   238,   28   L.   R.  A.   581,   60  N. 


1352 


BiiAL  Property. 


[§  371 


for  which  the  right  of  tiowage  was  created.^^''  And  one 
whose  land  is  subject  to  a  right  of  way  may  take  profits, 
such  as  herbage  or  minerals,  from  the  ground  on  which 
the  way  is  located,^^  and  may  even  plough  the  ground, 
it  has  been  said,  pro\ided  this  does  not  unreasonably 
interfere  with  the  exercise  of  the  easement.*^^  He  can- 
not pasture  stock  on  the  ground  on  which  the  way  is 
located,  especially  if  this  is  a  source  of  danger  to  per- 
sons using  the  way.^^ 

The  o^^Tier  of  the  servient  tenement  may,  it  seems, 
at  his  own  expense,  make  changes  in  connection  with 
the  appliances  placed  thereon  for  the  purpose  of  ex- 
ercising the  easement,  in  so  far  as  such  changes  in  no 
way  interfere  wath  the  exercise  of  the  easement,  he 
being  entitled,  except  in  so  far  as  the  exercise  of  the 
easement  is  concerned,  to  have  his  land  in  condition 
satisfactory  to  himself.^^^ 

The  owner  of  land  subject  to  a  right  of  way  may 
himself   use   the   same   way,*'^    provided   this    does   not 


W.  717;  Valentino  v.  Schantz,  216^ 
N.  Y.  1,  L.  R.  A.  1916B,  1044,  Ann. 
Cas.    1917C,   780,    109    N.    E.    866; 
Searle    v.    Gardner,    13    Atl.    835 
(Pa.) 

59b.  Howe  v.  Andrews,  62 
Conn.  398,  26  Atl.  394;  Stevens 
V.  Kelley,  78  Me.  445,  57  Am.  Rep. 
813,  6  Atl.  868;  Bigelow  v.  Shaw, 
65  Micli.  341,  8  Am.  St.  Rep.  902, 
32  N.  W.  800;  Dodge  v.  Berry,  26 
Hun    (N.  Y.)   246. 

60.  Smith  v.  Langewald,  140 
Mass.  205,  4  N.  E.  571;  Cleveland, 
C.  C.  &  St.  L.  R.  Co.  V.  Simp- 
son, 182  Ind.  693,  104  N.  E.  301; 
Greenmount  Cemetery  Go's  Ap- 
peal, 4  Atl.  528  (Pa.) 

61.  Moffitt  V.  Lj^le,  165  Pa. 
173,  30  Atl.  922. 

62.  Espencheid  v.  Bauer,  235 
111.    172,    85    N.   E.   230. 


He  cannot  enclose  a  part  of 
the  land  on  which  a  railroad 
right  of  way  is  located,  under 
claim  of  exclusive  right.  South- 
ern R.  Co.  V.  Beaudrot,  63  S.  C. 
266,  41  iS.  E.  299.  But  he  has,  it 
has  been  decided,  the  right  to  ri 
private  crossing  over  the  right 
of  v/ay  if  this  does  not  unreason- 
ably interfere  with  the  use  of  the 
right  of  way  for  railroad  pur- 
poses. Cincinnati,  H.  &  D.  Co. 
V.  Wachter,  70  Ohio  St.  113,  70  N. 
E.  974. 

62a.  See  Olcott  v.  Thompson, 
59  N.  H.  154,  47  Am.  Rep.  184. 

63.  Rice  v.  Ford  (Ky.),  120  S. 
W.  288;  Teachout  v.  Capital 
Lodge,  128  Iowa,  380,  104  N.  W. 
440  (stairway) ;  Morgan  v.  Boyes. 
65  Me.  124;  Kretz  v.  Fireproof 
Storage    Co.,    127    Minn.    304,    149 


§  371] 


Easements. 


135: 


iinreasonabh^  interfere  with  the  exercise  of  the  other's 
easement.''^  And  he  may  also  grant  to  another  or 
others  a  similar  right  of  way/^^  subject  to  the  same 
proviso,*'^  and  provided,  further,  the  prior  grant  was 
not  intended  to  be  exclusive.^''' 

The  owner  of  a  right  of  way  in  a  city  cannot  ordi- 
narily demand  that  the  space  over  the  way  be  absolutely 
free  from  projections  above  the  way,  such  as  bay  win- 
dows, at  such  a  height  as  not  to  interfere  with  the 
right  of  passage,^ ^  and  the  owner  of  the  servient  tene- 
ment may  even  place  an  arch  over,  or  otherwise  span, 
the  line  of  the  right  of  way,  and  erect  a  building  thereon, 
provided  the  building  is  not  so  near  the  ground  as 
unreasonably  to  interfere  with  the  user  of  the  way,*''^ 
and,  pro^dded  further,  the  language  of  the  grant,  con- 
strued wdth  reference  to  the  surrounding  circumstances, 


N.  W.  648;  Campbell  v.  Kuhlraan, 
38  Mo.  App  628;  Goss  v.  Calhane, 
113  Mass.  423;  Smith  v.  Row- 
land, 243  Pa.  306,  90  Atl.  183. 

64.  Herman  v.  Roberts,  119  N. 
Y.  37,  7  L.  R.  A.  226,  16  Am.  St. 
Rep.  800,  23  N.  E.  442,  where  the 
owner  of  the  servient  tenement 
injured  the  roadway  prepared  by 
the  owner  of  the  dominant  tene- 
ment, by  hauling  heavy  loads 
thereover. 

65.  Morgan  v.  Boyes,  65  Me. 
124;  Smith  v.  Rowland,  243  Pa. 
306,  90  Atl.  183.  See  Morton  v. 
Thompson,  69  Atl.  432,  38  Atl. 
S8. 

66.  Greene  v.  Canny,  137  Mass. 
64;  Jarman  v.  Freeman,  78  N.  J. 
Eq.  464,  79  Atl.  1065,  83  Atl. 
S72. 

67.  Greene  v.  Canny,  137 
Mass.  64;  Thompson  v.  Germania 


Life  Ins.  Co.,  97  Minn.  89.  106  N. 
W.  102. 

68.  Bittello  v.  Lipson,  80  Conn. 
497,  69  Atl.  21;  Burnham  v. 
Kevins,  144  Mass.  88,  59  Am.  Rep. 
61,  10  N.  E.  494.  But  see 
Schmoele  v.  Betz,  212  Pa.  41,  108 
Am.  St.  Rep.  845,  61  Atl.   525. 

69.  Atkins  v.  Bordman,  2  Mete. 
(Mass.)  457,  37  Am.  Dec.  100; 
Lipsky  V.  Heller,  199  Mass.  310, 
85  N.  E.  310;  Duncan  v.  Gold- 
thwait,  216  Mass.  402,  103  N.  E. 
701;  Sutton  v.  Groll,  42  N.  J.  Eq. 
213,  15  L.  R.  A.  487;  Hollins  v. 
Demorest,  129  N.  Y.  15  L.  R. 
A.  487,  29  N.  E.  1093;  Grafton 
V.  Moir,  130  N.  Y.  465,  27  Am.  St. 
St.  Rep.  533,  29  N.  E.  974;  An- 
drews v.  Cohen,  221  N.  Y.  148,  116 
N.  E.  862;  Duross  v.  Singer,  224 
Pa.  573,  73  Atl.  951;  Stevenson 
v.   Stewart,  7  Phil.    (Pa.)    293. 


1354 


Keal,  Pboperty. 


[§  371 


does   not   indicate   an  intention   that   nothing   shall   he 
erected    thereover  J  <* 

— —  Gates  over  way.  The  cases  are  generally  to 
the  effect  that,  in  the  absence  of  language  or  circum- 
stances calling  for  a  different  construction  of  the 
grant  or  reservation  of  a  right  of  way,  the  owner  of 
the  servient  tenement  is  entitled  to  maintain  a  fence 
■with  a  gate  therein,  at  either  end  of  the  way,  that  is, 
at  the  point  where  the  servient  tenement  abuts  upon 
a  highway  or  upon  another's  property,"^  and  he  may 
even  be  justified  in  placing,  instead  of  a  gate,  remov- 


70.  For  cases  in  which  the 
terms  and  circumstances  of  the 
grant  of  the  way  were  regarded 
as  such  as  to  preclude  any  erec- 
tions over  the  way,  at  any  height 
from  the  ground,  see  Schwoerer 
V.  Boylston  Market  Ass'n,  99 
Mass.  285;  Brooks  v.  Reynolds, 
106  Mass.  31;  Attorney  General 
V.  Williams,  140  Mass.  329,  54  Am. 
Rep.  468;  Crocker  v.  Cotting,  181 
Mass.  146,  63  N.  E.  402;  Frost  v. 
Jacobs,  204  Mass.  1,  90  N.  E. 
357;  Goodwin  v.  Bragaw,  87  Conn. 
31,   86  Atl.   668. 

71.  Green  v.  Goff,  153  111.  534, 
29  N.  E.  975;  Phillips  v.  Dress- 
ier, 122  Ind.  414,  17  Am.  St.  Rep. 
575,  24  N.  E.  226;  Boyd  v.  Bloom, 
152  Ind.  152,  52  N.  E.  751  (al- 
though use  of  way  to  be  "free 
and  unincumbered) ;  Berg  v. 
Neal,  40  Ind.  App.  575,  82  N.  E. 
802;  Maxwell  v.  McAfee,  9  B. 
Mon.  (Ky.)  20,  48  Am.  Dec.  409; 
Ames  V.  Shaw,  82  Me.  379,  19  Atl. 
856;  Baker  v.  Frick,  45  Md.  337, 
24  Am.  Rep.  506;  Short  v.  De- 
vine,  146  Mass.  119,  15  N.  E.  148; 
Gibbons    v.    Ebding,    70    Ohio    St. 


298,  101  Am.  St.  Rep.  900,  71  N. 
E.  720;  Connery  v.  Brooke,  73 
Pa.  80;  Watson  v.  Coke,  73  S. 
Car.  36,  53  S.  E.  537;  Utah-Idaho 
Sugar  Co.  v.  Stevenson,  34  Utah, 
184,  97  Pac.  26;  Whaley  v.  Jar- 
rett,  69  Wis.  613,  2  Am.  St.  Rep. 
764;  Collins  v.  Degler,  74  W.  Va. 
455,  82  S.  E.  265  (though  grant 
of  "free  right  of  way") ;  Mitchell 
V.  Bowman,  74  W.  Va.  498,  82  S.  E. 
330. 

That  a  gate  was  there  at  the 
time  of  the  grant  is  obvious- 
ly a  circumstance  tending  to 
strengthen  the  presumption  that 
it  was  contemplated  by  the  par- 
ties that  a  gate  might  thereafter 
be  maintained.  Truax  v.  Greg- 
ory, 196  111.  83,  63  N.  E.  674;  Gar- 
land V.  Furber,  47  N.  H.  304. 
Conversely,  the  fact  that  the  land 
had  for  a  long  time  been  used 
for  purposes  of  passage  without 
any  gates  having  been  erected 
tends  to  show  that  no  right  to 
erect  gates  was  contemplated. 
See  Raisor  v.  Lyons,  172  Ky.  314, 
f89  S.  W.  234;  Welch  v.  Wilcox, 
101  Mass.  162,  100  Am.  Dec.  113; 


§  371]  Easements.  1355 

able  bars  at  the  termini  of  the  way  on  tlie  landJ^  It 
is  readily  conceivable,  indeed,  that  he  might  have  a 
right  to  maintain  a  fence  at  the  terminns  of  a  footway, 
with  merely  steps  to  aid  in  climbing  the  fence.  On  the 
other  hand,  if  the  grant  or  reservation,  construed  with 
reference  to  the  surrounding  circumstances,  shows  an  in- 
tention that  no  fence  or  gate  shall  be  erected,  such  a 
showing  of  intention  is  controlling.^^ 

In  the  absence  of  any  express  language  bearing 
upon  the  question  of  the  right  in  this  regard,  the 
courts  ordinarily  treat  it  as  a  question  of  fact  whether 
gates  or  bars  will  unreasonably  interfere  with  the 
exercise  of  the  easement  of  passage.'^  Even  though 
the  owner  of  the  servient  tenement  would  not  other- 
wise have  the  right  to  place  a  gate  or  bars  across  the 
way,  he  may  acquire  the  right  by  reason  of  his  main- 
tenance of  the  gate  or  bars  for  the  prescriptive  period.'^^ 

The  courts  have  but  rarely  considered  the  question 
of  the  right  of  the  owner  of  the  servient  tenement  to 
maintain  a  fence  with  a  gate  therein,  not  at  one  or  both 
of  the  termini  of  the  way,  but  across  the  way  at  a 
point  well  within  his  own  land,'^^  for  the  purpose  of 
dividing  his  land  into  different  tracts,  to  be  utilized  for 

Garland  v.  Furber,  47  N.  H.  301;  son    v.    Whiting,    141    Mass.    414 

Newsora  v.  Newsom    (Tenn.  Ch.),  (existing  lane);    Patton  v.   West- 

56  S.  W.  29.  f.in  Carolina  Educational  Co.,  101 

72.  Bakeman  v.  Talbot,  31  N.  N.  C.  408,  8  S.  E.  140  (reserva- 
Y.  366,  88  Am.  Dec.  275;  Ball  v.  tion  of  "thirty  three  feet  for  a 
Allen,    216    Mass.    469,    103    N.    E.  street"). 

928;   Goodale  v.  Goodale,  107  Me.  74.     See  Baker  v.  Frick,  45  Md. 

301,   78   Atl.   567;    Jewell    v.   Cle-  337,  24   Am.  Rep.   506;    Jewell   v. 

ment,  69  N.  H.  133,  39  Atl.  582.  Clement,    69    N.    H.    133,    39    Atl. 

73.  Mineral  Springs  Mfg.  Co.  582;  Brill  v.  Brill,  108  N.  Y.  511, 
V.  McCarthy,  67  Conn.  279  (way  15  N.  E.  538;  Connery  v.  Brooke, 
"to  be  unincumbered");  Devore  73  Pa.  80;  Griffin  v.  Gilchrist,  29 
V.  Ellis,  62  Iowa,  505,  17  N.  W.  R.  I.  200,  69  Atl.  683,  and  other 
740   (fences  along  way) ;   Goodale  cases  cited,  aiite,  notes  71-73. 

v.    Goodale,   107   Me.   301,   78   Atl.  75.     Ball  v.  Allen,  21G  Mass.  469. 

567;   Welch  v,  Wilcox,  101  Mass.       103  N.  E.  928. 
162,   100   Am.   Dec.    113;    Dicken- 


1356  Real,  Pboperty.  [§  371 

different  purposes.  Inability  thus  to  divide  his  land  by 
fences  running  across  the  line  of  the  way  might  involve 
a  very  considerable  hardship,  and  it  does  not  seem 
that,  in  the  ordinary  case,  the  existence  of  a  gate  at 
a  point  within  his  own  land  would  involve  inconvenience 
to  the  person  using  the  way  to  any  greater  extent  than 
would  a  gate  located  at  his  boundary.  Whether  he  may 
so  erect  a  fence  or  fences  across  the  line  of  the  way 
for  the  purpose  of  dividing  his  land,  with  a  gate 
therein  at  the  point  where  the  way  strikes  the  fence, 
would  seem  properly  to  he  determined  by  the  same 
considerations  as  control  in  the  case  of  a  fence  and  gate 
at  the  terminus  of  the  way,  with  the  additional  con- 
sideration, perhaps,  of  his  bona  fides  in  erecting  the 
fence. 

In  the  case  of  a  way  based  upon  prescription,  the 
question  of  the  right  of  the  servient  owner  to  maintain 
a  gate  across  the  way  has  usually  been  regarded  as  a 
matter  to  be  determined  by  the  consideration  whether 
such  a  gate  was  maintained  during  the  prescriptive 
period.'^'''  In  other  cases,  however,  the  view  has  been 
adopted  that  the  controlling  consideration  is  whether 
the  gate  would  involve  an  unreasonable  interference 
with  the  exercise  of  the  easement,  having  regard  to  the 
nature  thereof.'^ ^ 

76.     In    Short    v.    Devine,    146  88    Am.    Dec.    275,    and    is    stated 

Mass.  119,  15  N.  E.  148,  the  court  in  Bean  v   Coleman,  44  N.  H.  539, 

apparently   regards   the  fact  that  and  Dyer  v.  Walker,  99  Wis.  404, 

the  gate  is  "in  the  middle  of"  the  75   N.   W.   79    (prescriptive   way), 

way,    and    not    at    the    terminus  77.     Hill  v.  Miller,  144  Ga.  404, 

thereof,    as    a    consideration    ad-  87  S.  E.  385;  Frankhoner  v.  Cor- 

verse    to    the    right    to    maintain  der,   127   Ind.   164,   26   N.   E.  766; 

it.  Frazier  v.  Myers,  132  Ind.  71,  31 

That   there   may  be  a  right   to  N.    E.    536.    Miller    v.    Pettit,    127 

maintain    a    fence    and    gate    or  Ky.   419,   105   S.  W.   892;    Shivers 

bars  for  the  purpose  of  dividing  v.   Shivers,   32  N.   J.   Eq.   578,   af- 

the    servient   tenement    is    appar-  firmed  35  N.  J.  Eq.  562;  Rogerson 

ently  assumed  in  Groodale  v.  Good-  v.    Shepherd,    33    W.    Va.    307,    10 

ale,    107    Me.    301,    78    Atl.    567;  S.    E.    632. 

Bakeman  v.  Talbot,  31  N.  Y.  366,  78.     Ames  v.  Shaw,  82  Me.  179, 


^  371] 


Easements. 


1357 


Occasionally  one  having  a  right  of  way  over  an- 
other's land  has  been  required  to  erect  a  gate  or  gates 
at  the  border  of  the  land,  to  prevent  the  escape  or  en- 
trance of  stock.'^'^  The  imposition  of  such  an  active 
duty  uix)n  the  owner  of  the  dominant  tenement  to  pro- 
tect the  o^^^ler  of  the  servient  appears  not  to  be  gener- 
ally  recognized."  ^^ 

If  the  owner  of  the  ser\dent  tenement  has  the  right 
to  have  a  gate  across  the  way,  the  owner  of  the  ease- 
ment is  under  an  obligation  to  shut  the  gate  when  he 
makes  use  of  the  way,'^  and  a  failure  to  do  so,  it  ap- 
pears, operates  to  make  his  user  of  the  way  wrongful, 
constituting  a  trespass -on  the  sersaent  tenement. ^^ 

Interference  by  third  person.     That  A  has  an 


easement  in  land  does  not  justify  him  in  interfering,  by 
the  erection  of  structures  or  otherwise,  ^rith  the  exer- 
cise of  an  easement  belonging  to  B  in  the  same  land,*^ 
except,  it  seems,  when  such  interference  is  necessary 


19  Atl.  856;  Hartman  v.  Fick,  167 
Pa.  18,  31  Atl.  342,  46  Am.  St. 
Rep.  658;  Luster  v.  Garner,  128 
Tenn.  160,  48  L.  R.  A.  (N.  S.) 
87,  Ann.  Cas.  1914D,  769,  159  S. 
W.  604;  Mitchell  v.  Bowman,  74 
W.  Va.  498,  82  S.  E.  330;  Dyer 
V.  Walker,  99  Wis.  404,  75  N.  W. 
79.  And  see  Evans  v.  Cook,  33 
Ky.  Law  Rep.  788,  111  S.  W.  326. 

78a.  Daniron  v.  Justice,  162 
Ky.  101,  172  S.  W.  120;  Moore  v. 
White,  159  Mich.  460,  124  N.  W. 
62. 

78b.  That  there  is  no  such 
duty,  see  Rowe  v.  Nally,  81  Md. 
367.    32    Atl.    198. 

79.  Amondson  v.  Severson.  37 
Iowa,  602;  Truax  v.  Gregory,  196 
111.  83,  63  N.  E.  674;  Brill  v.  Brill, 
108  N.  Y.  511,  15  N.  E.  538;  Dam- 
ron   V.   Justice,   162    Ky.    101,    172 

2  R.  P.— 11 


S.  W.  120. 

That  the  owner  of  the  ease- 
ment is  bound  only  to  the  ex- 
ercise of  reasonable  care  to  see 
that  the  gates  are  kept  closed. 
See  Rater  v.  Shuttlefield,  146 
Iowa,  512,  44  L.  R.  A.  (N.  S.)  101. 
125   X.    W.   235. 

80.  See  Garland  v.  Furber,  47 
N.  H.  301. 

81.  West  Louisville  &  X.  R. 
Co.,  155  Ala.  506,  46  So.  469; 
Goodwin  v.  Bragaw,  87  Conn.  31, 
86  Atl.  668;  Murphy  v.  Marker, 
115  Ga.  77,  41  S.  E.  585;  Killion 
v.  Kelly,  120  .Mass.  47;  Freeman 
V.  Sayre,  48  N.  J.  L.  37,  2  Atl. 
650;  Ellis  v.  Academy  of  Muslo, 
120  Pa.  608,  6  Am.  St.  Rep.  739, 
15  Atl.  494;  Allegheny  Nat.  Bank 
v.  Reighard,  204  Pa.  391,  54  Atl. 
268. 


1358 


Eeal  Pbopertt. 


[§  371 


to  the  exercise  of  A's  easement,  and  B's  easement  was 
acquired  mth  notice,  actual  or  constructive,  of  the 
prior  grant  to  A. 

Remedy.      An   action   for    the    disturbance    or 

obstruction  of  an  easement  shoukl,  at  common  law,  bo 
in  case."'-  Ejectment  does  not  lie,'"'^  nor  trespass  qiiare 
clausum  fregit.^^  There  being  an  infringement  of  his 
right,  the  owner  of  the  easement  is  entitled  to  at  least 
nominal   damages.^^ 

Notice  to  the  owner  of  the  servient  tenement  to 
remove  an  obstruction  which  he  has  interposed  to  the 
exercise  of  the  easement  is  not  necessary  before  bring- 
ing an  action  on  account  of  such  obstruction,^*^  but  if 
the  defendant,  the  owner  of  the  servient  tenement  at 
the  time  of  suit,  is  not  the  original  creator  of  the  ob- 
struction, and  he  has  merely  allowed  an  obstruction 
created  by  a  former  owner  to  remain,  a  previous  re- 


82.  Bale  v.  Todd,  123  Ga.  99, 
50  S.  E.  990;  Martin  v.  Bliss, 
5  Blackf.  (Ind.)  35,  32  Am.  Dec. 
52;  Shaffer  v.  Smith,  7  Har.  &  J. 
(Md.)  67;  Bowers  v.  Suffolk  Mfg. 
Co.,  4  Cush.  (Mass.)  332;  Os- 
borne V.  Butcher,  26  N.  J.  Law 
308;  Shroder  v.  Brenneman,  23 
Pa.  St.  348. 

83.  Adams,  Ejectment,  c.  2; 
Canton  Co.  v.  City  of  Batimore, 
106  Md.  69,  11  L.  R.  A.  (N.  S.) 
129,  66  Atl.  671,  67  Atl.  274;  Tay- 
lor V.  G-ladwia,  40  Mich.  232; 
Brier  v.  State  Exchange  Bank,  225 
Mo.  673,  125  S.  W.  469;  Roberts 
V.  Trujillo,  3  N.  M.  87,  1  Pac. 
855;  Child  v.  Chappell,  9  N.  Y. 
246;  Parker  v.  West  Coast  Pack- 
ing Co.,  17  Ore.  510,  5  L..  R.  A. 
61,  21  Pac.  822;  Hancock  v.  Mc- 
Avoy,  151  Pa.  St.  460,  18  L.  R.  A. 
781,  31  Am.  St.  Rep.  774,  25  Atl. 
47;    Pritsche  v.  Fritsche,  77  Wis. 


270,  45  N.  W.  1089;  LeBlond  v. 
Town  of  Peshtigo,  140  Wis.  604, 
25  L.  R.  A.  (N.  S.)  511,  123  N.  W. 
157. 

84.  Chitty,  Pleading  (7th  Ed.) 
147,  159;  Shafer  v.  Smith,  7  Har. 
&  J.  (Md.)  67;  Morgan  v.  Boyes, 
65  Me.  124;  Wetmore  v.  Robin- 
son, 2  Conn.  529;  Osborne  v. 
Butcher,  26  N.  J.  L.  308. 

85.  Tuttle  V.  Walker,  46  Me. 
280;  Collins  v.  St.  Peters,  65  Vt. 
618,  27  Atl.  425;  Dewire  v.  Han- 
ley,  79  Conn.  454,  65  Atl.  573; 
Harrop  v.  Hirst,  L.  R.  4  Exch. 
43;  Goddard,  Easements  (6th  Ed.) 
438. 

86.  Collins  v.  St.  Peters,  65  Vt. 
618,  27  Atl.  425.  But  the  ease- 
ment may  Itself  involve  a  neces- 
sity of  notice  to  the  owner  of 
the  servient  tenement,  that  is,  the 
easement  may  be  one  to  be  ex- 
ercised only  after  notice  to  such 


§  371] 


Easements. 


1359 


quest  to  him  to  remove  it  is,  it  seems,  necessary,  unless, 
at  least,  he  already  had  notice  of  the  easement  and  its 
obstruction,^^  this  according  with  the  rules  ordinarily 
applicable  to  actions  on  account  of  the  maintenance  of 
a  nuisance. ^^ 

A  tenant  of  land  holding  under  a  lease  may  bring  an 
action  on  account  of  the  disturbance  of  an  easement,  he 
being  directly  affected  thereby.^^^  The  reversioner  may 
also  sue  if  the  disturbance  is  of  such  a  permanent 
character  or  otherwise  of  such  a  nature  that  he  can  be 
regarded  as  suffering  damage  therefrom.^^'' 

In  view  of  the  incorporeal  character  of  a  j)ew,  the 
remedy  for  interference,  with  the  pew  holder's  right 
would  seem  properly  to  be  an  action  on  the  case.^®  In 
a  number  of  cases  in  this  country,  however,  it  is  held 
that  trespass  quare  clausum  fregit  or  ejectment  will 
lie.9« 


cw);er.      See    Phipps    v.    Johnson, 
99  Mass.  26. 

87.  Hogan  v.  Barry,  143  Mass. 
538,  10  N.  E.  253;  Elliott  v. 
Rhett,  5  Rich.  (,S.  C.)  405,  57  Am. 
Dec.  750;  Gale,  Easements  (8th 
Ed.)   588. 

88.  See  note  to  Leahan  v. 
Cochran,  86  Am.  St.  Rep.  at  p. 
508,  et  seq.;  1  Tiffany,  Landlords 
Ten.   p.  791. 

88a.  Gale,  Easements  (8th 
Ed.),  582;  Walker  v.  Clifford,  128 
Ala.  67,  86  Am.  St.  Rep.  74,  29 
So.  588;  Hamilton  v.  Dennison, 
56  Conn.  359.  1  L.  R.  A.  287,  15 
Atl.  748;  Greist  v.  Amryhn,  80 
Conn.  280,  68  Atl.  521;  Morrison 
V.  Chicago  &  N.  W.  R.  Co.,  117 
Iowa,  587,  91  N.  W.  793;  Foley 
V.  Wyeth,  2  Allen  (Mass.)  135; 
Coleman  v.  Holden,  88  Miss.  798, 
41  So.  374;  Schmoele  v.  Betz,  212 
Pa.  32,  108  Am.   St.  Rep.   845,  61 


Atl.  525. 

88b.  See  2  Tiffany,  Landlord  & 
Ten.,  §  353a. 

89.  See  Stocks  v.  Booth,  1 
Term  R.  431;  Bryan  v.  Wliistler, 
8  Barn.  &  C.  294;  Perrin  v. 
Granger,  33  Vt.  101;  Trustees  of 
ihe  Third  Presbyterian  Congrega- 
tion V.  Andruss,  21  N.  J.  Law,  325; 
Daniel  v.  Wood,  1  Pick.  (Mass.) 
102,  11  Am.  Dec.  151. 

90.  Jackson  v.  Rounseville,  5 
Mete.  (Mass.)  127;  O'Hear  v.  De 
Goesbriand,  33  Vt.  593,  80  Am. 
Dec.  653;  Howe  v.  Stevens,  47 
Vt.  262;  Shaw  v.  Beveridge,  3 
Hill  (N.  Y.)  26,  38  Am.  Dec.  616; 
First  Baptist  Church  v.  Witherell, 
3  Paige  (N.  Y.)  296,  24  Am.  Dec. 
223.  These  cases  seem  to  be  based 
on  the  theory  that  a  pew  is  "real 
estate,"  and  that  these  forms  of 
action  always  lie  for  "real  es- 
tate."    On    this   theory,   trespass 


1360  Real  Pkopeety.  [^  371 

Injunction.     Tlie  question  of  the  propriety  of 


the  issuance  of  an  injunction  to  restrain  an  interfer- 
ence with  an  easement,  especially  of  a  right  of  way, 
has  been  frequently  the  subject  of  litigation.  An  in- 
junction for  this  purpose  may  assume  a  mandatory  as 
well  as  a  prohibitory  form,  as  w^hen,  in  the  case  of 
the  obstruction  of  the  exercise  of  the  easement  by  a 
structure  of  a  permanent  or  quasi  permanent  character, 
the  decree  requires  the  removal  of  the  structure.^^ 

In  some  of  the  reported  cases,  the  court  recognizes 
the  right  to  an  injunction  to  restrain  the  obstruction  of 
an  easement  without  the  mention  of  any  possible  limita- 
tions upon  the  right,^^  and  in  favor  of  such  right,  when 
the  obstruction  is  of  a  permanent  or  quasi  permanent 
character,  is  the  consideration  that  otherwise  the  o^\mer 
of  the  easement  would  be  in  effect  compelled  to  sell 
his  right  for  a  price  equal  to  the  amount  of  the 
damages  which  he  may  recover  on  account  of  the 
obstruction.^^    More  usually,  however,  the  courts  recog- 

Quare    clausum    fregit     or     eject-  454,  65  Atl.  573;   Shedd  v.  Ameri- 

ment    would    lie    for    any    ease-  can   Maize   Products   Co.,   60   Ind. 

ment  or  right  of  profit,  since  they  App.  146,  108  N.  E.  610;   Swisher 

are  all  "real  estate,"  except  when  v.    Chicago    &    A.    Rwy.    Co.,    235 

the  interest  is  merely  for  years.  Mo.   430,  138  S.  W.  505;    Nash  v. 

91.  See  Stallard  v.  dishing,  76  New  England  Mut.  Life  Ins.  Co., 
Cal.  472,  18  Pac.  427;  Feitler  v.  J27  Mass.  91;  Vinton  v.  Greene, 
Dobbins,  263  111.  78,  104  N.  E.  158  Mass.  426,  33  N.  E.  607;.Agnew 
1088;  Robbins  v.  Archer,  147  v.  Pawnee  City,  79  Neb.  603,  113 
Iowa,  743,  126  N.  W.  936;  Henry  N.  W.  236;  Herman  v.  Roberts. 
V.  Koch,  80  Ky.  391,  44  Am.  Rep.  119  N.  Y.  37,  7  L.  R.  A.  226,  16 
484;  Schaidt  v.  Blaul,  66  Md.  141,  Am.  St.  Rep.  800,  23  N.  E.  442. 

6   Atl.    669;    Green   v.    Richmond,  Nicholas  v.  Title  &  Trust  Co..  79 

155  Mass.  188,  29  N.  E.  770;  Long-  Ore.   226,    Ann.   Cas.    1917A,    1149, 

ton    V.    Stedman,    182    Mich.    405,  154   Pac.    391;    Bowers   v.    Myers, 

148  N.  W.  738;   Dulce  Realty  Co.  237  Pa.  St.  533,  85  Atl.  860;  Kalin- 

V.  Staed  Realty  Co.,  245  Mo.  417.  owski    v.    Jacobowski,    52    Wash. 

151  S.  W.  415;  Rogerson  v.  Shep-  359,  100  Pac.  852. 

herd,  33  W.  Va.  307,  10  S.  E.  632.  93.     See  Tucknr  v.  Howard,  128 

92.  See  McCann  v.  Day,  57  111.  Mass.  361;  Manbeck  v.  Jones,  190 
100;   Dewire  v.  Hanley,  79  Conn.  Pa.  St.  171,  42  Atl.  536.     But  the 


§  371] 


Easements. 


1361 


nize  some  restrictions  upon  the  right  to  an  in- 
junction for  this  purpose.^ ^*^  One  such  restriction  is  to 
the  effect  that  equity  will  not  take  jurisdiction  if  it 
does  not  clearly  appear  that  the  easement  actually  ex- 
ists in  the  applicant  for  the  injunction,  it  being  for  a 
court  of  law  rather  than  for  one  of  equity  to  deter- 
mine the  existence  of  an  easement."^  It  has  in  one  case 
been  asserted  that,  in  the  case  of  a  right  of  way,  the 
location  of  the  way  must  clearly  appear.^'  It  has  like- 
wise, been  stated  that  the  injury  to  be  prevented  must 
be  irreparable,  or  that  an  injunction  will  issue,  pro- 
vided the  injury  is  of  that  character, '"^  and  that  the 
threatened  interference  with  the  exercise  of  the  ease- 


fact  that  the  injurj'  can  be  com- 
pensated in  damages  has  been 
referred  to  as  a  ground  for  re- 
fusing an  injunction.  Green  v. 
Richmond,  155  Mass.  188;  Berke- 
ley V.  Smith,  27  Gratt.  (Va.) 
892. 

93a.  See  editorial  note,  10  Co- 
lumbia Law  Rev.    355. 

94.  Oswald  v.  Wolf,  129  111. 
200,  21  N.  E.  839;  Feitler  v.  Dob- 
bins, 263  111.  78,  104  N.  E.  1088; 
Bennett  v  Seligman,  32  Mich.  500; 
Hart  V.  Leonard,  42  N.  J.  Eq. 
416,  7  Atl.  865;  Todd  v.  Staats, 
60  N.  J.  Eq.  507,  46  Atl.  645; 
ITacke's  Appeal,  101  Pa.  245;  Sea- 
board Air  Line  R.  Co.  v.  Olive. 
142  N.  C.  257,  55  S.  E.  263. 

Conversely  it  is  said  that  an 
injunction  may  issue  if  the  ex- 
istence of  the  easement  is  not 
doubtful.  Espencheid  v.  Bauer, 
235  111.  172,  85  X.  E.  230;  Ober- 
heim  v.  Recside,  116  Md.  265,  81 
Atl.  590;  Imperial  Realty  Co.  v. 
West  Jersey  &  S.  R.  Co.,  78  N. 
J.  Eq.  110,  77  Atl.  1041;   Manbeck 


V.  Jones,  190  Pa.  171,  42  Atl.  536; 
Garvey  v.  Harbison-Walker  Re- 
fractories Co.,  213  Pa.  177,  62  Atl. 
778. 

That  the  determination  of  the 
existence  and  character  of  the 
easement  involves  the  construc- 
tion of  a  written  instrument  does 
not  appear  to  be  ground  for  re- 
fusing relief  in  equity.  Shreve 
v.  Mathis,  63  N.  J.  Eq.  170,  52 
Atl.  234;  Oberheim  v.  Reeside, 
116   Md.   265,   81  Atl.  590. 

95.  Fox  V.  Pierce,  50  Mich.  500, 
15  N.  W.  880.  But  see  Bright  v. 
Allan,  203  Pa.  386,  53  Atl.  248. 

96.  Murphey  v.  Harker,  115 
Ga.  77,  41  S.  E.  585;  Oswald  v. 
Wolf,  129  III.  200,  21  N.  E.  839; 
Feitler  v.  Dobbins,  263  III.  78, 
104  N.  E.  1088;  Henry  v.  Koch, 
20  Ky.  391,  44  Am.  Rep.  484;  Jay 
v.  Michael,  92  Md.  198,  48  Atl. 
61;  West  Arlington  Land  Co.  of 
Baltimore  County  v.  Flannery,  115 
Md.  274,  80  Atl.  965;  Rogerson 
V.  Shepherd,  33  W.  Va.  307,  10 
S.  E.  632. 


1362  Real  Pkoperty.  [-§  371 

ment  must  be  substantial.'^'  Eeference  is  also  occa- 
sionally made  to  the  permanent  or  continuous  character 
of  the  obstruction  as  a  consideration  in  favor  of  grant- 
ing such  relief.^^  The  fact  that  the  plaintiff  has  not 
yet  suffered  any  damage  by  reason  of  the  easement  does 
not  appear  to  be  conclusive  against  his  right  to  an  in- 
junction.^^ Occasionally  an  injunction  has  been  refused 
on  the  ground  that  it  would  operate  oppressively,  the 
owner  of  the  easement  being  left  to  his  remedy  at 
law/  or  a  decree  being  made  for  the  ascertainment  and 
payment  of  damages.  To  some  degree,  as  ordinarily  in 
connection  with  an  application  for  an  injunction,  the 
matter  is  within  the  discretion  of  the  court,  and  it  has 
been  said  that  one  will  not  be  required  to  remove  an 
obstruction  of  a  merely  partial  character,  if  this  would 
bear  upon  him  with  undue  severity,^  especially  if  the 
owner  of  the  easement  has  been  guilty  of  laches  in  not 
earlier  seeking  redress.^ 

Abatement.    The  person  entitled  to  exercise  an 

easement  may  himself  remove  or  "abate"  a  structure 
or  object  which  obstructs  its  exercise,^  provided,  per- 

97.  Hagerty  v.  Lee,  45  N.  J.  109  Pac.  87;  Feitler  v.  Dobbins, 
Eq.  1,  15  Atl.  399;  Green  v.  Rich-  263  111.  78,  104  N.  E.  1088;  Swift 
mond,  155  Mass.  188,  29  N.  E.  v.  Coker,  83  Ga.  789,  20  Am.  St. 
770;  Bentley  v.  Root,  19  R.  I.  Rep.  347,  10  S.  E.  442;  Swisher 
205,  32  Atl.  918;  Wilson  v.  Cohen,  v.  Chicago,  &  A.  Ry.  Co.,  235  Mo. 
Rice  Eq.    (S.   Car.)    80.     Compare  430,  138  S.  W.  505. 

Schmoele    v.    Betz(    212    Pa.    32,  1.     McBryde    v.    Sayre,    86   Ala. 

108  Am.  St.  Rep.  845,  61  Atl.  525.  458,   3    L.    R.    A.    861,   5   So.   791; 

98.  Danielson     v.     Sykes,     157  Hall  v.  Rood,  40  Mich.  46;   Rich- 
Cal.    686,    28    L.    R.    A.     (N.    S.)  ard's  Appeal,  57  Pa.  St.  105. 
1024,     109     Pac.     87;     Russell     v.  2.     Berkeley  v.  Smith,  27  Gratt. 
Napier,    80    Ga.    77,   4   S.    E.    857;  (Va.)   892. 

Webber    v.    Gage,    39    N.    H.    182;  3.      Green     v.     Richmond,     155 

Shreve    v.    Mathis,    63    N.    J.    Eq.  Mass.  188,  29  N.  E.  770:    Bentley 

170,  52  Atl.  234;   Miller  v.  Lynch,  v.  Root,  19  R.  I.  205. 

149  Pa.  460,  24  Atl.  80.  4.     Green     v.     Richmond,     155 

99.  Danielson     v.     Sykes,     157  Mass.  188,  29  N.  E.  770. 

Cal.  686,  28  L.  R.  A.  (N.  S.)  1024,  5.     Quintard  v.  Bishop,  29  Conn. 


<^  372]  Easements.  1363 

haps,  the  circumstances  are  not  such  that  the  removal 
may  cause  a  breach  of  the  peace.*^  If,  however,  the  ob- 
struction was  created  by  a  foiTuer  owner  of  the  land 
and  merely  allowed  by  the  subsequent  owner  to  re- 
main, its  abatement  by  the  owner  of  the  easement  is 
justified,  it  seems,  only  after  he  has  notified  the  owner 
of  the  land  to  abate  itJ  And  such  notice  appears  to 
be  necessary  even  as  against  the  original  creator  of  the 
obstruction,  if  the  abatement  involves  a  trespass  upon 
the  latter 's  land.^ 

IV.     Extinction  of  Easements. 

§  372.    Cessation  of  purpose -of  easement.     It  has 

been  said  that  when  an  easement  is  created  for  a  par- 
ticular jDurpose,  it  comes  to  an  end  upon  a  cessation  of 
that  purpose,^  which  means,  apparently,  that  an  ease- 
ment which  is  created  to  endure  only  so  long  as  a 
particular  purpose  is  subserved  by  its  exercise,  comes 
to  an  end  when  it  can  no  longer  subserve  such  purpose. ^<^ 

366;     Sargent     v.     Hubbard,     102  8.     Jones  v.  Williams,  11  Mees. 

Mass.    380;    Morgan   v.   Boyes,   65  &    W.    176;     Lemmon     v.     Webb 

Me.  124;   Joyce  v.  Conlin,  72  Wis.  (1905),  App.  Cas.  1. 

607,  40  N.  W.  212.  9.     National  Guaranteed  Manure 

6.  Schmidt  v.  Brown,  226  111.  Co.  v.  Donald,  4  Hurlst.  &  N.  8; 
590,  11  L.  R.  A.  (N.  S.)  457,  117  Long  v.  Louisville,  98  Ky.  67,  32 
Am.  St.  Rep.  261.  80  N.  E.  1071;  s.  W.  271;  Chicago  &  N.  W.  Ry. 
Keplinger  v.  Woolsey,  4  Neb.  ,Co.  v.  Sioux  City  Stock-Yards 
(unoff)    282,   93   N.  W.   1008.  Co.,    176    Iowa,    659,    158    N.    W. 

But   in   Davies   v.   Williams,   16  769;    Hahn    v.    Baker    Lodge    No, 

Q.  B.  546,  the  removal  of  a  house,  47,   21    Ore.   30,   13   L.   R.   A.   158, 

which  was  at  the  time  inhabited,  28  Am.  St.  Rep.  723,  27  Pac.  166; 

was    regarded    as   justifiable,   pro-  Riefler  &  Sons  v.  Wayne  Storage 

vided  notice  to  remove  it  had  been  Water  Power  Co.,  232  Pa.  282,  81 

previously  given.  Atl.  300. 

7.  O'Shaughnessy  v.  O'Rourke,  That  an  appurtenant  easement 
36  Miss.  518,  73  N.  Y.  Supp.  1070.  iy,  not  extinguished  by  an  attempt 
Applying  the  rule  which  exists  to  separate  it  from  the  dominant 
in  the  ordinary  case  of  a  nui-  tenement,  see  note  in  20  Harv. 
sance,  as  asserted  in  Penruddock's  Law  Rev.  at  p.  136. 

Case,  5  Co.  Rep.  101.  10.     See  Cotting  v.  Boston,  201 


1364  Real  Peoperty.  [^  372 

Tlie  question  then  is,  in  each  case,  what  is  the  particular 
purpose  to  be  subserved  by  the  easement,  and  this, 
in  the  case  of  an  easement  created  by  grant,  is  a  question 
of  intention.  In  the  case  of  an  easement  created  by 
prescription,  on  the  other  hand,  the  question  as  to  what 
is  the  particular  purpose  to  be  subserved  l)y  the  ease- 
ment is  i)resumably  to  be  determined  with  reference 
to  the  apparent  purpose  of  the  user  during  the  pre- 
scriptive  period. 

An  easement  to  use  a  dock  or  waterway  for  vessels 
has  been  regarded  as  coming  to  an  end  when,  owing  to 
the  construction  of  a  street  by  the  municipality,  such 
use  of  the  dock  or  waterway  became  impossible.^^  And 
an  easement  to  be  exercised  for  the  benefit  of  a  partic- 
ular lot  has  been  considered  to  cease  when  the  lot 
became  permanently  submerged  by  the  waters  of  a 
river,^^  or  the  lot  was  appropriated  for  a  street. '' 
Likewise,  a  right  of  approach  to  an  upper  room  or  floor 
in  a  building  was  held  to  come  to  an  end  when  the 
building  was  destroyed. ^^     So,  in  the  case  of  the  grant 

Mass.    97,    87    N.    E.    205;    Cotton  India  Wliarf,  123  Mass.  567. 
States   Lumber   Co.   v.   James,    98  12.     W9is  v.  Meyer,  55  Ark.  18, 

Miss.    134,    53    So.    410;    Bangs   v.  17  S.  W.  339. 

Parker,  71  Me.  458;  Hall  v.  Arm-  13.     Hancock    v.    Wentworth,    5 

strong,  53  Conn.   554,  4  Atl.   113;  Mete.  (Mass.)   446.     See  Brown  v 

In   Johnson  v.   Knapp,   150   Mass.  Ore.  Short  Line  R.   Co.,  36  Utah, 

267.  23  N.  E.  40,  it  was  held  that,  257,   24    L.   R.   A.    (N.    S.)    86,   102 

even  though  a  pipe  was  actually  Pac.  740. 

used    at    the    time    of   the    sever-  14.     Hahn  v.   Baker  Lodge  No. 

ance   of    ownership    for   the   pur-  47,  21  Ore.  30,  13  L.  R.  A.  158,  28 

pose    of    conducting    water,    still.  Am.    St.    Rep.    723,    27    Pac.    166; 

if   the    supply   of   water   was    de-  Cotting  v.   Boston,   201   Mass.   97, 

pendent  on  the  continuance  of  a  87  N.  E.  205. 

license  to  take  it  from  other  land.  In    Shirley    v.    Crabb,    138    Ind. 

the    easement   which    passed    was  200,   46   Am.    St.   Rep.   376,   37    N. 

to    endure    only    so    long    as    it  E.     130,     the     extinguishment     of 

could  be  rightfully  taken,  that  is.  such  an  easement  appears  to  be 

until  the  license  was  revoked.  based   on   the  destruction    of   the 

11.     Mussey  V.  Union  Wharf,  41  servient   building,   not   the   domi- 

Me.    34;     Central    Wharf    &    Wet  nant,  though  both  were  as  a  matter 

Dock     Corp.     V.     Proprietors     of  of  fact  destroyed.     In  Douglas  v. 


^  372]  Easements.  1365 

of  a  right  of  way  for  a  railroad,  a  reservation  in  favor 
of  the  owner  of  the  land  of  the  privilege  of  a  crossing, 
by  which  to  pass  to  other  land  belonging  to  him,  was 
construed  as  giving  such  crossing  so  long  only  as  the 
two  pieces  of  land  belonged  to  the  same  person.^^  In 
these  various  cases  the  easement,  being  one  created  by 
grant,  came  to  an  end,  it  is  conceived,  because  it  was 
intended,  or  presumed  to  be  intended,  to  come  to  an 
end  upon  an  event  such  as  occurred,  rather  than  as  oc- 
casionally suggested,  because  the  impossibility  of  the 
exercise  of  an  easement,  or  the  impossibility  of  its 
exercise  for  the  same  purpose  as  before,  necessarily  in- 
volves its  extinguishment.  That  an  easement  may  con- 
tinue to  exist  even  though  its  exercise  is  temporarily 
impossible,  is  not  open  to  question,  and  in  the  cases 
above  referred  to,  the  impossibility  of  its  continued  ex- 
ercise as  before,  while  it  threatened  to  be  periiianent, 
might,  in  the  event,  have  proven  to  be  temporary 
merely. 

The  destruction  of  a  building  on  the  dominant  tene- 
ment will  effect  an  extinguishment  of  the  easement  if 
the  easement  was  intended  to  be  exercised  only  in 
connection  with  that  particular  building,^"  while  it  will 
not  have  that  effect  if  it  was  intended  to  l)e  exei'cised 
in  connection  with  the  land,  independently  of  tlie  ex- 
istence  thereon    of   a   building,   or   of    some    particular 

Coonley,   156  N.  Y.   521,   51  N.   E.  300. 

283,    the    easement    was    held    to  16.     Day    v.    Walden,    46    Mich. 

be    suspended    and    revived.      See  575,  10  N.  W.  26;  Blake  v.  Clark, 

P'M,  this  section,  notes  16,  17,  19-  6    Me.    436.      Compare    Stevenson 

26a,  28,  29.  v.  Wallace,  27  Gratt.   (Va.)  77. 

15.     Knowlton  v.  New  York,  N.  17.     Hottell    v.    Farmers'    Pro- 

H.  &  H.  R.  Co.,  72  Conn.  188,  44  tectivo  Ass'n,  25  Colo.  67,  71  Am. 

Atl.  8;    Marino  v.  Central  R.  Co.,  St.   Rep.   109,    53    Pac.    327;    Rey- 

69  N.  J.  L.  628,  56  Atl.  306;  Van-  nolds  v.  Union  Savings  Bank,  ISo 

dalia   R.   Co.   v.  Furnas,   182   Ind.  Iowa,  519,  49  L.  R.  A.  (N.  S.)  194, 

306,    106     N.    E.     401.      Compare  j36  N.   W.  529;    Bangs  v.  Parker. 

Rathbun   v.   New    York,    N.    H.    &  71  Me.  458;  Chew  v.  Chew.  39  N. 

H.    R.    Co.,    20    R.    I.    GO,    37    Atl.  J.  Eq.  396;  Hennen  v.  Deveny,  71 


1366 


Keal  Propebty. 


[§  372 


bnilding.^^  An  easement  of  flowage  for  tlie  benefit  of 
a  canal  has  been  held  to  come  to  an  end  when  the 
canal  was  abandoned. ^^ 

That  an  easement  of  a  right  of  way,  created  by 
a  grant  thereof  in  express  terms,  w^as  at  the  time  of 
the  grant  necessary  for  the  purpose  of  access  to  the 
dominant  tenement,  has  not  been  regarded  as  a  reason 
for  holding  the  easement  extinguished  when  the  neces- 
sity ceases, ^^^  the  rule  thus  differing  from  that  which 
has  been  applied  in  connection  with  a  right  of  way  by 
necessity/*^ 

Party  wall.   The  easement  of  using  a  wall,  or  a 


part  thereof,  belonging  to  another,  as  a  party  wall,  has 
been  regarded  as  ceasing  upon  the  destruction,  by  fire  or 
other  accident,  of  the  wall  and  of  the  buildings  separated 
thereby,^^  and  also  upon  such  destiniction  of  the  buildings, 
though  the  wall  remains  standing.^^^    In  thus  asserting 


W.  Va.  629,  L.  R.  A.  1917A,  524, 
77  S.  E.  142.  Accordingly  it  has 
been  decided  that  an  easement 
of  light  may  continue  in  exist- 
ence although  the  building  by 
which  the  light  was  availed  of 
is  destroyed.  Tapling  v.  Jones,  11 
H.  L.  Cas.  290;  Scott  v.  Pape,  31 
Ch.  Div.  554;  City  Nat.  Bank  v. 
Van  Meter,  59  N.  J.  Eq.  32,  45 
Atl.  280,  61  N.  J.  Eq.  674,  47  Atl. 
1131. 

18.  Riefler  v.  Wayne  Storage 
Water  Power  Co.,  232  Pa.  282, 
81  Atl.  300. 

18a.  Johnson  v.  Allen,  33  Ky. 
Law  Rep.  621,  110  S.  W.  851; 
Estep  V.  Hammons,  104  Ky.  144, 
46  S.  W.  715,  (semble) ;  Atlanta 
Mills  V.  Mason,  120  Mass.  244; 
Perth  Amboy  Terra  Cotta  Co.  \. 
Ryan,  68  N.  J.  L.  474,  53  Atl. 
699;  Crounse  v.  Wemple,  29  N. 
Y.    540    (prescriptive   way) ;    Par- 


sons V.  N.  Y.,  X.  H.  &  H.  R. 
Co.,  216  Mass.  269,  103  N.  E.  693; 
Zell  V.  Universalist  Soc,  119  Pa. 
390,  4  Am.  St.  Rep.  654,  13  Atl. 
447,  Ebert  v.  Mishler,  234  Pa. 
609,  83  Atl.  596. 

18b.  Post,  this  section,  notes 
27-29. 

19.  Sherred  v.  Cisco,  4  Sandf. 
(N.  Y.)  480;  Partridge  v.  Gilbert, 
15  N.  Y.  601,  69  Am.  Dec.  632; 
Antomarchi's  Ex'r  v.  Russell,  63 
Ala.  356,  35  Am.  Rep.  40;  Dun- 
can, v.  Rodecker,  90  Wis.  1,  62 
N.  W.  533.  See  Huck  v.  Flentye, 
80  111.  258  (destruction  of  wall 
and  single  building  supported 
thereby). 

20.  Moore  v.  .Shoemakery  10 
App.  D.  C.  6;  Dowling  v.  Hen- 
nings,  20  Md.  179,  83  Am.  Dec. 
545;  Hoffman  v.  Kuhn,  57  Miss. 
746,  34  Am.  Rep.  491;  Bowhay 
V.    Richards,    81    Neb.    764,    19    L. 


<§  372]  Easements.  1367 

that  a  party  wall  easement  ceases  on  the  destruction 
of  the  buildings,  the  courts  appear  to  consider  that 
there  is  a  rule  of  law  to  that  effect,  necessitated  by  the 
consideration  of  the  burden  involved  in  compelling  an 
owner  to  reconstruct  his  wall  or  building  in  such  a 
way  as  to  afford  his  neighbor  the  same  easement  as  he 
had  before.  The  rule  is,  however,  it  is  submitted,  in 
the  case  of  the  grant  or  reservation  of  a  party  wall 
easement,  properly  a  rule  of  construction  rather  than 
of  law,^^  since  it  could  be  excluded  by  an  expression  of 
intention  that  the  easement  shall  continue  in  spite  of 
the  destruction  of  the  buildings.^-  It  might,  however, 
in  the  case  of  such  an  easement,  when  created  by  pre- 
scription, it  seems,  be  regarded  as  a  rule  of  law. 

In  one  case,-''^^  it  was  decided  that  while  ordinarily 
the  destruction  of  a  party  wall  and  the  buildings  on 
both  sides  thereof  would  extinguish  the  party  wall  ease- 
ments, and  also  the  easement  of  a  right  to  use  a  stair- 
case in  one  building  for  purposes  of  access  to  the 
other,  this  was  not  so  when  the  wall  and  staircase  were 
inunediately  rebuilt  in  exactly  the  same  location  as 
before,  it  being  said  that  "this  conduct  of  the  parties 
operated  to  revive  the  easement  that  was  suspended 
by  the  destruction  of  the  property."  There  is,  in  an- 
other state,  a  decision  to  the  contrary  effect,^'^  and  it  is 

R.  A.   (N.  S.)   883,  116  N.  W.  677.  being    a    case    of    express    grant. 

Heartt  v.  Kruger,  121  N.  Y.  386,  It   does   not   seem   that  this  con- 

9  L.  R.   A.   135,  18  Am.  St.   Rep.  stitutes     a     substantial    basis     o£ 

829,   24   N.  E.   841;    Odd   Fellows'  distinction. 

Hall  Ass'n  of  Portland  v.  Hegele,  21.     See    Moore    v.    Shoemaker, 

24  Ore.  16,  32   Pac.  679.  10  App.  D.  C.  6. 

In  Heartt  v.  Kruger,  121  N.  Y.  22.     As    in    F'risbie    v.    Bigham 

386,   9    L.   R.    A.   135,    18   Am.   St.  Masonic   Lodge   No.   256,   133    Ky. 

Rep.     829,    24    N.    E.    841    supra.  588,  118  S.  W.  359. 

the     court    emphasizes     the     fact  23-24.     Douglas  v.  Coonley,   15t; 

that    the    easement    was    created  N.   Y.   521,   66  Am.   St.   Rep.   580, 

by  "implied  grant"  as  correspond-  51  N.  E.   283. 

ing    to    a   preexisting    gwa.si-ease-  25.     Bonney    v.    Greenwood,    96 

ment,  distinguishing  Brondage  v.  Me.  335,  52  Atl.  786. 
Warner,   2    Hill    (N.   Y.)    145,   as 


1368  Real  Property.  [§  372 

somewhat  difficult  to  see  how,  if  the  destniction  of  the 
buildings  is  otherwise  sufficient  to  extinguish  the  ease- 
ment, this  can  be  avoided  by  the  subsequent  adoption 
of  a  particular  plan  of  rebuilding.  The  decision  might 
perhaps  be  supported  on  the  theory  that  the  grant  was 
of  an  easement  to  endure  so  long  as  the  land  was  util- 
ized for  buildings  similar  to  the  buildings  originally 
existing  thereon.  The  court  quotes  from  a  text  book 
on  the  civil  law  to  the  effect  that  while  "servitudes 
cease  when  the  things  are  found  in  such  condition  that 
one  can  no  longer  use  them,"  they  "revive  if  the  things 
are  reestablished  in  such  a  manner  that  one  can  use 
them."  But  whatever  the  civil  law  doctrine  in  this 
regard  may  be,  the  existence  of  an  easement,  by  the 
law  of  this  country  and  of  England,  is  not  af- 
fected by  the  temporary  impossibility  of  its  exer- 
cise. In  the  case,  for  instance,  of  a  right  to  conduct 
water  over  another's  land,  an  injury  to  the  aqueduct 
which  makes  it  impossible,  for  the  time  being,  to  exer- 
cise the  easement,  in  no  way  affects  the  existence  of 
the  easement.  And  the  repair  of  the  aqueduct  con- 
sequently does  not  revive  the  easement,  though  it  re- 
vives the  possibility  of  its  exercise. 

The  destruction  of  one  of  the  buildings  separated 
by  a  party  wall  has  been  held  not  to  extinguish  the 
easement  in  the  wall  in  favor  of  the  other  building,-'' 
and  such  a  \iew  is  particularly  suggested  when  the 
right  of  support  is  created  by  implied  grant  by  way 
of  necessity,  the  necessity  enduring  so  long  as  the  build- 
ing supported  endures.^*'-'^ 

Way   of   necessity.     A   way   of  necessity   has 

been  regarded  as  coming  to  an  end  when  the  necessity 
ceases,   as,   for   instance,   when   a   highway   is    opened 

26.     Lexington    Lodge    v.    Beal,  (N.  S.)   1021,  134  Pac.  614. 

94    Miss.    521,    49    So.    833;    Com-  26a.     See  editorial  note,  13  Col- 

mercial    Kzt.    Bank    of    Ogden    v.  umbia  Law  Rev.  754. 
Eccles,      43Utah,   91,   46  L.   R.   A. 


§  372]  Easements.  1369 

through  the  dominant  tenement,  or  the  owner  thereof 
acquires  another  right  of  way.-'  As  the  intention  to 
create  the  way  is  inferred  from  the  necessity  of  the 
way,  the  extent  of  the  inference  is  limited  by  the  same 
consideration.  The  acquisition  of  another  right  of  way, 
however,  is  not  sufficient  to  exting-uish  the  w^ay  of 
necessity,  unless  the  new  right  of  way  is  reasonably 
sufficient  for  the  enjoyment  of  the  dominant  tenement.^'" 

Change  in  servient  tenement.     Occasionally  an 

easement  is  created  in  such  terms,  or  under  such  circum- 
stances, as  to  indicate  that  the  easement  is  to  endure  so 
long  only  as  a  structure  on  the  servient  tenement,  in 
connection  ^yith.  which  the  easement  is  to  be  exercised, 
endures  or  is  capable  of  use.^^  In  such  case  the  ease- 
ment comes  to  an  end  when  the  structure  is  destroyed 
or  becomes  incapable  of  use.  A  somewhat  similar  case 
is  presented  by  a  decision  that  when,  by  reason  of 
the  condemnation  of  part  of  the  servient  tenement  for' 
the  purpose  of  a  railroad  right  of  way,  the   exercise 

27.      Carey  v.  Rae,  58  Cal.  159;  Proctor  v.  Hodgson,  10  Exch.  824. 

Cassin   v.   Cole,    153   Cal    677,    96  27a.     Hart      v.      Deering,      222 

Pac.   277;    CoUins  v.   Prentice,   15  Mass.  407,  111  X.  E.  37 

Conn.  39,  38  Am.  Dec.  61;  Russell  That     one     having     a     way     of 

V.    Napier,    82    Ga.    770,    9    S.    E.  necessity  is  given  a  mere  revoc- 

746;   Oswald  v.  Wolf,  129  111.  200,  able    permission    to    pass    to    his 

21  N.  E.  839.    Whitehouse  v.  Cum-  land    over    other    land    has    been 

mings,  83  .Me.  91,  23  Am.  St.  Rep.  held  not  to  involve  a  termination 

756,  21  Atl.  743;   Oliver  v.  Hook,  of  the  necessity,   so  as  to   extin- 

46   Md.   301;    Haserick    v.   Boulia-  guish   the  right  of   way.     Sweezy 

Gorell  Co.,  77  N.  H.  121,  88  Atl.  v.    Vallette,    37    R.    I.    51,    90    Atl. 

998;    Palmer    v.    Palmer,    150    N.  1078. 

Y.  139,  55  Am.  St.  Rep.  653,  44  N.  28.     Linthicum   v.  Ray,  9  Wall. 

E.   966.     But  see  Conley  v.  Fair-  241,    19    L.    Ed.    657;     Shirley    v. 

child,  142  Ky.  271,  134   S.  W.  142,  Crabb,    138    Ind.    200,   46    Am.    St. 

properly   criticized,  it  is  submitted.  Rep.  376,  37  N.  E.  130;   Ballard  v. 

in  11  Columhia  Law  Rgv.  478.  Butler,  30   Me.  94.  Central  Wharf 

The  English  case  of  Holmes  v.  v.    India    Wharf,    123    Mass.    567; 

Goring,  2   Bing,  76,  accords  with  Bartlett  v.  Peaselee,  20  N.  H.  547, 

the    view    generally    adopted    in  51  Am.  Dec.  242;   Percival  v.  Wil- 

this  country,  but  it  is  questioned  Hams,   82   Vt.    531,   74   Atl.   321. 
by    Parke    &    Aldersou,    B.    B.,    in 


1370  Re.a.l  Peoperty.  [^  373 

of  a  preexisting  private  right  of  way  became  impossible 
of  exercise,  it  was  extinguished.^^ 

§  373.  Excessive  user  of  land.  The  fact  that  the 
owner  of  the  easement  makes  a  use  of  the  servient  tene- 
ment not  justified  by  the  character  or  extent  of  the  ease- 
ment does  not  involve  the  extinguishment  or  suspension 
of  the  easement,  although  in  making  such  use  he  is  a 
w^rongdoer.''^  Equity  will,  in  such  case,  ordinarily  en- 
join such  an  illegal  exercise  of  the  easement,  without 
interfering  with  the  proper  exercise  except  in  so  far 
as  this  may  be  necessary  to  protect  the  landowner. 

As  before  stated,^  ^  the  fact  that,  subsequently  to 
the  grant  of  the  easement,  there  is  a  change  in  the  mode 
in  which  the  dominant  tenement  is  utilized,  so  that 
there  results  a  more  constant  use  of  the  servient  tene- 
ment in  the  exercise  of  the  easement,  has  not  ordinarily 
been  regarded  as  involving  an  excessive  user  of  the 
easement.  That  is,  the  grant  of  the  easement  is  re- 
garded prima  facie  as  not  being  intended  to  continue 
in  force  only  so  long  as  the  mode  of  utilizing  the 
dominant  tenement  continues  unchanged.  It  might  oc- 
cur, however,  that  by  a  reason  of  a  very  radical  change 
in  the  dominant  tenement,  it  becomes  impossible  to 
exercise  the  easement  without  an  excessive  user  of  the 
servient  tenement,  and  the  making  of  such  change 
might,  under  some  circumstances,  be  regarded  as  in- 
vohdng  an  extinction  of  the  easement  by  abandon- 
ment.^ ^^ 

29.  Cornell  Andrews  Smelting  vitt  v.  Washington  County,  75  Vt. 
Co.  V.  Boston  &  P.  R.  Corp.,  202  156,  53  Atl.  563.  See  McMiUian  v. 
Mass.  585,  89  N.  E.  118.  Cronin,    75    N.    Y.    474;    editorial 

30.  Mendell  v.  Delano,  7  Mete.  note  18  Harv.  Law  Rev.  608. 
(Mass.)  176;  McTavish  v.  Carroll,  31.     Ante,  §  369. 

13     Md.     429.     White's     Bank     v.  31a.     Goddard,   Easements    (6th 

NichoUs,  64  N.  Y.  65;   Walker  v.       Ed.)    547;    Gale,    Easements    (8th 
Gerhard,  9  Phila.  (Pa.)  116.  Dea-      Ed.)    521,   528. 


-^  374]  Easements.  1371 

§  374.  Unity  of  possession  or  title.  An  easement 
is  ordinarily  extinguished  if  one  person  acquires  an 
estate  in  fee  simple  in  possession  in  both  the  dominant 
and  servient  tenements.'^^  J3y  reason  of  the  perpetual 
right  of  possession  of  the  tenement  which  was  pre- 
viously subject  to  the  easement,  such  person  and  his 
heirs  can  make  any  use  whatsoever  thereof,  and  the 
inferior  right  of  easement,  its  utility  having  thus  dis- 
appeared, is  swallowed  up  in  the  superior  right  of  pos- 
session. 

Wlien  one  person  acquires  estates  in  possession 
in  both  the  dominant  and  servient  tenements,  but  they 
are  such  in  character  that  one  mil  or  may  terminate 
before  the  other,  the  utility  of  the  easement,  though  in 
abeyance  for  the  time  being,  is  liable  to  revive  by  reason 
of  the  termination  of  one  of  such  estates,  and  conse- 
quently there  is  no  reason  for  regarding  it  as  extin- 
guished. So  the  easement  is  not  extinguished  by  rea- 
son of  the  fact  that  one  has  an  estate  in  fee  simple  in 
one  tenement  and  an  estate  for  life  or  for  years  in  the 
other.^3  But  though  the  estates  are  of  unequal  duration, 
the  easement  should,  it  would  seem,  be  regarded  as  ex- 
tinguished if  it  cannot  possibly  endure  after  the  less 
estate  comes  to  an  end,  as  when  an  easement  is  created 

32.     Smith  v.  Roath,  238  111.  247,  ment  of  a  right  of  way  by  reason 

128   Am.    St.    Rep.    123,    87    N.    E.  of  the  acquisition,   by  the  owner 

414;  Warren  v.  Blake,  54  Me.  276,  of  the  dominant  tenement,  of  the 

89  Am.  Dec.  748;  Capron  V.  Green-  fee  simple  in  the  servient  tene- 
way,  74  Md.  289,  22  Atl.  269;  ment,  if  there  is  a  like  right  of 
Ritger  v.  Parker,  8  Cush.   (Mass.)  way  outstanding  in  another.  This 

145,  54  Am.  Dec.  744;  Atwater  is,  it  is  submitted,  most  question- 
V.  Bodfish,  11  Gray   (Mass.)    150         able. 

Rogers  v.  Powers,  204  Mass.  257,  33.     Thomas      v.      Thomas,      2 

90  N.  E.  514;  Kieffer  v.  Imhoff,  Cromp.  M.  &  R.  34;  Dority  v. 
1'6  Pa.  438;  Plimpton  v.  Converse,  Dunning,  78  Me.  381,  6  Atl.  6; 
42  Vt.  712.  Bull,   Petitioner,   15   R.    I.   534,   10 

In   Tuttle   V.   Kilroa,   177   Mass.       Atl.  484;   Pearce  v.  McClenaghan, 

146,  58  N.  E.  682,  there  is  ap-  5  Rich.  Law  (S.  Car.)  178,  55  Am. 
parently   a   dictum    that   there   is       Dec.  710. 

no    extinguishment    of    the    ease- 


1372  Eeal  Property.  [^  374 

in  favor  of  a  life  tenant  of  land  for  his  life,  and  subse- 
quently he  acquires  a  fee  simple  estate  in  the  servient 
tenement,  or  the  fee  simple  tenant  of  the  servient  tene- 
ment acquires  his  life  estate  in  the  dominant  tenement. 

It  has  been  decided  that  the  estates  are  not  of  equal 
duration  for  the  purpose  of  causing  an  extinguishment 
of  the  easement,  when  one  is  a  fee  simple  and  the  other 
a  fee  determinable.^*  And  the  same  principle  appears 
to  be  involved  in  decisions  that  the  easement  is  not 
extinguished  because  the  legal  title  to  both  the  domin- 
ant and  servient  tenements  is  vested  in  one  person  as 
mortgagee,  under  distinct  mortgages  falling  due  at 
different  times,^^  nor  because  an  estate  in  fee  simple  in 
both  tenements  is  vested  in  a  single  person,  if  one  of 
these  titles  is  wrongful,  and  therefore  subject  to  defeas- 
ance.^^ 

As  above  indicated,  the  extinguishment  of  the  ease- 
ment by  one's  acquisition  of  estates  in  both  the  dominant 
and  servient  tenements  appears  to  be  by  reason  of  the 
unity  of  possession  operating  to  render  the  easement 
useless,  and  so  in  the  earlier  authorities  the  unity  of 
possession  is  referred  to  as  the  important  consideration, 
without  any  reference  to  the  question  of  the  necessity 
of  unity  of  seisin."^^  It  has  been  said,  however,  that 
unity  of  possession  is  insufficient  to  effect  an  extinguish- 
ment unless  there  is  also  unity  of  seisin,-^^  w^ithout  any 
explanation  being  given  of  why  unity  of  seisin  should 
bo  regarded  as  necessary.  Suppose  A  having  an  estate 
in  Whiteacre  for  ten  years  only  creates  in  favor  of  B 

34.  Rex  V.  Inhabitants  of  Her-  166;    Peers  v.  Lucy,  4  Mod.  364; 
mitage,   Cathew.  339.  Rex  v.  Inhabitants  of  Hermitage. 

35.  Ritger   v.   Parker,   8    Cush.  Carthew.  239;   Whalley  v.  Thomp- 
(Mass.)  145,  54  Am.  Dec.  744.    See  son,  1  Bos.  &  P.  371. 

Co.  Litt.,  313b.  38.     Thomas      v.      Thomas,      2 

36.  Tyler     v.      Hammond,      11  Cromp.    M.    &    R.,    per    Alderson, 
Pick.   (Mass.)   193;   Co.  Lilt.  313b.  B.;   editorial  note,  21  Harv.  Law 

37.  Bro.   Abr.    Extinguishment,  Rev.    at    p.    359;     11    Halsbury's 
pi.  15;    Jenkins'  Centuries,  p.   20,  Laws  of  England,  283. 

case    37;    Sury    v.    Pigot,    Poph. 


<^x  374]  Easements.  1373 

an  easement  in  Wliiteacre  to  the  extent  of  his  ability, 
that  is,  for  the  balance  of  the  ten  years,  and  subse- 
quently B  acquires  A's  estate  for  the  balance  of  the 
ten  years.  B  then  has  an  estate,  with  the  right  of 
possession  for  so  long  as  the  easement  can  endure,  and 
the  same  reason  would  seem  to  exist  for  regarding  the 
easement  as  exting-uished  as  if  he  had  acquired  also  the 
estate  in  fee  simple  in  Wliiteacre. 

Xot  only  has  it  been  said  that  unity  of  possession 
without  unity  of  seisin  is  insufficient  to  extinguish  the 
easement,  but  it  has  even  been  said  that  unity  of  seisin 
without  unity  of  possession  is  sufficient  for  this  pur- 
pose.^'' According  to  this  view,  if  one  who  has  an  estate 
in  fee  simple  in  the  dominant  tenement  makes  a  lease 
for  years  and  subsequently  transfers  his  reversion  to 
the  owner  of  the  servient  tenement,  he  thereby  effects 
an  exting-uishment  of  the  easement  not  only  as  against 
himself  but  also  as  against  his  lessee.-^^*^  A  rule  which 
thus  operates  to  put  property  rights  of  one  person  at 
the  mercy  of  others  is  to  be  accepted  with  same  hesita- 
tion, in  the  absence  of  an  overwhelming  weight  of 
authority  in  its  favor.  It  is  difficult  indeed  to  under- 
stand why  the  highly  artificial  concei)tion  of  seisin,  as 
distinguished  from  possession,  should  be  introduced  in 
this  connection.  As  above  indicated,  the  earlier  authori- 
ties, to  whom  the  conception  of  seisin  was  most  familiar, 
refer  to  unity  of  possession,  as  the  decisive  considera- 
tion  without   mention   of  unity   of   seisin. 

In  order  that  unity  of  possession  may  extinguish  the 
easement,  the  person  in  whom  the  union  occurs  must 

39.     Buckby  v.   Coles,   5   Taunt.  ihe  easement  of  light.     The  deci- 

211.  sion     appears,     however,     to     be 

39a.  That  the  owner  of  the  based  on  the  terms  of  the  Pre- 
dominant tenement  cannot  thus  scription  Act  in  reference  to  the 
effect  the  extinguishment  of  the  easement  of  light,  rather  than 
easement  as  against  his  lessee  is  upon  general  principles  appli- 
decided  in  Richardson  v.  Graham,  cable  to  all  easements. 
1  K.  B.  (1908)  439,  as  regards 
2  R.  P.— 12 


1374  Eeal  Property.  [§  375 

have  an  estate  in  severalty  in  each  tenement/^  If  he 
has  'merely  a  fractional  interest  in  the  dominant  tene- 
ment, his  co-owners  are  entitled  to  the  easement  irre- 
spective of  whether  his  share  and  the  servient  tenement 
become  united  in  ownership,"*^  while  if  he  has  merely  a 
fractional  interest  in  the  servient  tenement,  his  joint 
right  to  the  possession  of  such  tenement  gives  him  no 
right  to  utilize  any  part  thereof  for  his  own  exclusive 
benefit,  and  consequently  the  utility  of  the  easement  con- 
tinues as  before.^-  Moreover,  it  seems,  the  estates  which 
are  thus  united  in  one  person  must  both  be  beneficial  in 
character,  that  is,  one  must  not  be  a  bare  legal  estate  and 
the  other  equitable  in  character.^^ 

§  375.  Application  of  land  to  public  use.  The 
question  whether  the  establishment  of  a  highway  has 
the  effect  of  extinguishing"  a  pre-existent  private  right 
of  way  along  the  same  line  becomes  of  importance  in 
case  the  highway  is  subsequently  discontinued.^*  That 
the  concurrent  existence  of  a  highway  and  of  a  private 

40.  Cheda  v.  Bodkin,  173  Cal.  43.  See  Ecclesiastical  Com'rs 
7.  158  Pac.  1025;  Smith  v.  Roath.  for  England  v.  Kino,  14  Ch.  Div. 
238  111.  247,  87  N.  E.  414;  Reed  213;  Pearce  v.  McClenaghan,  5 
V.  West,  16  Gray  (Mass.)  283;  Rich.  Law  (S.  C.)  178,  55  Am. 
Atlanta  Mills  v.  Mason,  120  Mass.  Dec.  710. 

244;    Dority   v.    Dunning,    78    Me.  44.     The  question  is  referred  to 

381,  6  Atl.  6  {dictum);  Blanchard  in  Dodge  v.  Pennsylvania  R.  Co., 

V.  Maxson,  84  Conn.  429,  80  Atl.  43    N.    J.    Eq.    351,   but   the   cases 

206.  in  other  states  there  referred  to 

41.  See  Tuttle  v.  Kilroa,  177  as  adjudications  on  the  question 
Mass.  146,  58  N.  E.  682.  appear    to    be    but    partially    ap- 

42.  But  there  is  perhaps  a  plicable.  In  Murphy  v.  Bates,  21 
partial  extinguishment,  that  is,  R.  I.  89,  41  Atl.  1011,  it  is  said 
an  extinguishment  as  regards  his  that  "ordinarily  a  private  way 
interest  in  the  easement,  preclud-  becomes  merged  in  a  public  way," 
ing  him,  or  any  one  claiming  but  the  authorities  cited  (Ross 
under  him,  from  thereafter  ex-  v.  Thompson,  78  Ind.  90;  Elliott, 
ercising  the  easement.  tSee  Bar-  Roads  &  Streets,  §§  3  &  4)  do  not 
linger  v.  Virginia  Trust  Co.,  132  support  the  statement. 

N.  C.  409.  43  S.  E.  910. 


^  375]  Easements.  1375 

way  along  the  same  line  is  not  impossible  appears  to 
be  fully  recognized  in  the  decisions,  before  referred 
to,  that  the  grant  of  land  as  abutting  on  a  highway 
gives  in  effect  a  private  right  of  way  upon  the  discon- 
tinuance of  the  highway,-'-^  and  it  is  difficult  to  see  why 
the  establishment  of  a  highway  should  in  itself  extin- 
guish the  private  right,  though  it  renders  the  assertion 
of  such  right  at  least  temporarily  unnecessary.^*^ 

If  the  owner  of  the  right  of  way  joins  with  the 
o\\Tier  of  the  servient  tenement  in  dedicating  the  land 
to  such  public  use,  the  dedication  is  obviously  binding 
on  him,^^  but  it  would  seem  that,  as  upon  the  cessation 
of  the  public  use  the  owner  of  the  land  has  the  same 
rights  as  before  the  dedication,  so  the  owner  of  the 
easement  has  such  rights.  If  the  latter  does  not  join 
in  the  dedication  he  is  not,  in  theory,  affected  there- 
by,^* but  whether  the  transformation  of  the  private 
right  of  way  into  a  public  one  could  be  regarded  as 
an  impairment  of  his  rights  capable  of  legal  remedy 
would  seem  to  be  doubtful,  in  the  absence  at  least  of 
language  in  the  grant  of  the  right  of  way  making  it 
more  or  less  exclusive.^^ 

In  case  the  highway  is  established  by  legal  proceed- 
ings in  which  the  owTier  of  the  right  of  way  appears  as 
a  petitioner,  the  right  may  well  be  regarded  as  aban- 
doned by  him,^*^  In  case  he  is  not  a  petitioner  but  is 
a  party  to  the  proceedings,  his  right  would  seem  to  be 
extinguished  to  the  same  extent  as  that  of  the  owner  of 
the   land,   that   is,   only  during  the   continuance   of   tlie 

45.  Ante,  §  366a,  note  35.  And  1  Man.  &  Gr.  484;  Duncan  v. 
see  Isaac  G.  Johnson  &  Co.  v.  Louch,  6  Q.  B.  904;  R.  v.  Chorley, 
Cox,  196  N.  Y.  110,  89  N.  E.  454.  12  Q.  B.  515. 

46.  The  English  cases  are  47.  Bailey  v.  Culver,  84  Mo. 
dearly  to  the  effect  that  the  es-  531. 

tablishment    of    a    highway    over  48.     Sarcoxie    v.    Wild,    64    Mo 

the    line   of   a    private    way    does  App.  403.     See  Post,  §  481. 

not,  of  itself,  affect  the  existence  49.     See  ante,  367,  note  78. 

of  the  latter.    Allen  v.  Ormond,  8  50.     McKinney   v.   Pennsylvania 

Bast.  4;  Brownlow  v.  Tomlinson,  R.  Co.,  222  Pa.  48,  70  Atl.  946. 


1376  Real  Peopebty.  [<§,  376 

public  user,  with  a  revival  of  i]ie  right  upon  its  dis- 
continuance,^^ unless  the  puhiic  acquired  the  fee  by 
the  condemnation  proceeding.''-  If  he  is  not  a  party  to 
the  proceeding,  his  right  of  way  cannot  be  regarded  as 
extinguished,  so  as  to  be  incapable  of  assertion  after 
the  discontinuance  of  the  highway, ""^  though  he  is,  it 
appears,  to  be  regarded  as  concluded  by  the  pro- 
ceeding, on  the  theory  that  he  is  not  damnified  by  the 
establishment  of  the  highway.^'* 

When  the  servient  tenement  is  condemned  for  a 
railroad  right  of  way,  and  the  owner  of  the  easement  is 
made  a  party  to  the  proceeding,  the  easement  is  ex- 
tinguished, if  the  railroad  acquires  the  fee,"'^  while  if 
the  railroad  acquires  merely  the  easement  of  a  right 
of  way,  it  does  not  seem  that  the  private  easement  is 
extinguished,  though  its  exercise  is  for  the  time  being 
rendered  impossible.  If  the  owner  of  the  easement  is 
not  a  party  to  the  proceeding,  his  easement,  it  seems, 
is  not  affected  thereby.^^ 

§  376.  Express  release.  An  easement  may  be  ex- 
tinguished by  an  express  release  thereof  made  by  the 
owner  of  the  dominant  tenement  in  favor  of  the  owner 
of   the   servient   tenement,^^    and   such   an   express    re- 

51.  Post,   §   565.  57.     Goddard,    Easements,    575; 

52.  Post.  §  561.  Gale,      Easements,      512.      Jersey 

53.  Clayton  v.  County  Court,  Farm  Co.  v.  Atlanta  Realty  Co., 
58  W.  Va.  253,  2  L.  R.  A.  N.  S.  164  Cal.  412,  129  Pac.  593;  Rich- 
598,  52  S.  E.   103.  ards    v.    Attleborough    Branch    R. 

54.  Allea  v.  City  of  Chicago,  Co.,  153  Mass.  120,  26  N.  E.  418; 
176  111  113,  52  N.  E.  33 ;  Clayton  Flaten  v.  Moorehead  City,  58  Minn. 
V.  County  Court,  58  W.  Va.  253,  324,  59  N.  W.  1044;  McAllister 
2    L.    R.    A.    N.    S.    598,    52    S.    E.  v.  Deoane,  76  N.  C.  57. 

103.  Somewhat     analagous     to     the 

55.  Googins  v.  Boston,  &  A.  case  of  an  express  release  is  a 
R.  Co.,  155  Mass  505,  30  N.  E.  case  in  which  it  was  held  that  one 
71;  Currie  v.  Bangor,  &  A.  R.  who  made  a  conveyance  of  land 
Co.,  105  Me.  529,  75  Atl.  51.  with     a     covenant     of     warranty 

56.  Lewis,  Eminent  Domain,  §  therein  was  estopped,  upon  sub- 
531,  note  21.  sequently      acquiring      adjoining 


§  377] 


Easements. 


1377 


lease  must,  at  common  law,  like  any  other  release,  be 
under  seal.^^  Under  the  doctrine  of  abandonment  of 
an  easement,'"'^  however,  as  recognized  in  the  modern 
decisions,  it  seems  that  even  an  oral  relinquishment 
of  the  easement  might  be   effective. 

One  w^ho  has  only  a  partial  or  limited  interest  in 
the  dominant  tenement  can  obviously  extinguish  the 
easement  by  release  only  as   against  himself.*^" 

§  377.  Abandonment.  There  are  many  cases  to  tlie 
effect  that  an  easement  is  extinguished  by  ''abandon- 
ment" thereof,  by  which  is  meant  that  a  nonuser 
thereof,  together  with  other  circumstances,  may,  as 
showing  an  intention  to  make  no  further  use  of  it, 
terminate  the  easement.^ ^  The  question  whether  there 
has  been  such  an  abandonment  is  in  each  case  a  ques- 


land,  to  assert  that  there  was 
appurtenant  to  this  latter  land 
an  easement  upon  the  land  first 
conveyed.  Hodges  v.  Goodspeed, 
20  R.  I.  537,  40  Atl.  373. 

58.  Co.  Litt.  264b;  Gale,  Ease- 
ments, 482;  Pue  v.  Pue,  4  Md. 
Ch.  386.  That  it  must  be  in 
writing,  see  Erb  v.  Brown,  69 
Pa.  216. 

59.  Post,  §  377. 

60.  Dyer  v.  Sanford,  9  Mete. 
(Mass.)  395,  43  Am.  Dec.  399. 
Glenn  v.  Davis,  35  Md.  208,  6 
Am.  Rep.  389;  "Welsh  v.  Taylor, 
134  N.  Y.  450,  18  L.  R.  A.  535,  31 
N.  E.  896;  Robert  v.  Thompson, 
16  N.  Y.  Misc.  638,  40  N.  Y.  Supp. 
754. 

61.  Moore  v.  Rawson,  3  Barn. 
&  C.  332;  Stein  v.  Dahm,  96  Ala. 
481,  11  So.  597;  Arnold  v.  Roup, 
61  Colo.  316,  157  Pac.  206;  New 
York,  N.  H.  &  H.  R.  Co.  v.  Cella, 
88  Conn.  515,  91  Atl.  972;   Louis- 


ville &  N.  R.  Co.  V.  Covington, 
2  Bush  (Ky.)  526;  Fitzpatrick  v. 
Boston,  &  M.  R.  R.,  84  Me.  33,  24 
Atl.  432;  Stewart  v.  May,  119  Md. 
10,  85  Atl.  957;  Canny  v  Andrews, 
123  Mass.  155;  King  v.  Murphy, 
140  Mass.  254,  4  N.  E.  566.  Jones 
V.  Van  Bochove,  103  Mich.  98, 
61  N.  E.  342;  Snell  v.  Levitt,  110 
N.  Y.  595,  1  L.  R.  A.  414,  18 
X.  E.  370;  Welsh  v.  Taylor,  134 
N.  Y.  450,  18  L.  R.  A.  535,  31 
X.  E.  896;  Willey  v.  Xorfolk 
Southern  R.  Co.,  96  N.  C.  408; 
Faulkner  v.  Rocket,  33  R.  I.  152, 
80  Atl.  380;  Taylor  v.  Hampton, 
4  McCord  (S.  C.)  96,  17  Am.  Dec. 
710;  JMonaghan  v.  Memphis  Fair 
&  Exposition  Co.,  95  Tenn.  108, 
31  S.  W.  497.  Brown  v.  Oregon 
Short  Line  R.  Co.,  36  Utah,  257, 
24  L.  R.  A.  (N.  S.)  86,  102  Pac. 
740;  Philips  v.  Coumbe,  90  Wash. 
543,  156  Pac,  535;  Stenz  v.  Ma- 
honey,  114  Wis.  117,  89  N.  W.  819. 


1378 


Real  Property. 


[^  377 


tion  of  fact.''^  And  it  must  be  established,  it  has  been 
said,  by  "evidence  clear  and  unequivocal  of  acts  de- 
cisive and  conclusive.""^  Even  the  fact  that  the  owner 
of  the  dominant  tenement  erects  or  alters  a  structure 
in  such  a  way  as  to  render  the  exercise  of  the  ease- 
ment for  the  time  difficult  or  impossible  does  not  neces- 
sarily involve   an   abandonment  of   the   easement.^* 

It  has  been  stated,  with  more  or  less  explicit- 
ness,  that  the  underlying  theory  of  the  abandonment 
of  an  easement  is  that  of  the  inference  or  implication, 
from  the  circumstances  of  the  case,  of  an  express  re- 
lease  of  the   easement,*^^   but   such   a  theory   does   not 


62.  Smith  v.  Worn,  93  Cal.  206, 
28  Pac.  944;  Holmes  v.  Jones, 
80  Ga.  659,  7  S.  E.  168;  Vogler 
V.  Geiss,  51  M'd.  407;  King  v. 
Murphy,  140  Mass.  254,  4  N.  E. 
566.  Willets  v.  Langhaar,  212 
Mass.  573,  99  N.  E.  466;  Leach 
V.  Philadelphia,  H.  &  P.  R.  Co., 
258  Pa.  522,  102  Atl.  175;  Poison 
V.  Ingraham,  22  S.  C.  541;  South- 
ern Ry.-Carolina  Division,  v.  How- 
ell, 89  S.  C.  391,  Ann.  Cas.  1913A, 
1070,  71  S.  E.  972;  Cook  v.  Bath 
Corporation,  L.  R.  6  Eq.  177. 

63.  Adams  v.  Hodgtkins,  109 
Me.  361,  42  L.  R.  A.  (N.  S  )  741, 
84  Atl.  530.  And  for  state- 
ments of  a  more  or  less  similar 
character,  see  Dyer  v.  Sanford,  9 
Mete.  (Mass.)  395,  43  Am.  Dec. 
306;  Eddy  v.  Chace,  140  Mass. 
471,  5  N.  E.  306;  Lagorio  v.  Lew- 
enberg,  226  Mass.  464,  115  N.  E. 
979;  Hennessy  v.  Murdock,  137 
N.  Y.  317,  33  N.  E.  330;  Vogler 
V.  Geiss,  51  M'd.  407;  Raritan 
Water  Power  v.  Veghte,  21  N.  J. 
Eq  463.;  Daniel  v.  Doughty,  120 
Va.   853,  92   S.  E.  848. 

64.  Brunthaver  v.  Talty,  31 
App.   Dist.  Col.   134;    Hay  ward  v. 


Spokesfield,  100  Mass.  491.  Vin- 
ton V.  Greene.  158  Mass.  426,  33 
N.  E.  607;  Faulkner  v.  Duff,  14 
Ky.  L.  Rep.  227,  20  S.  W.  227; 
McKee  v.  Perchment,  69  Pa.  342. 
Compare  Taylor  v.  Hampton,  4 
McCord  (S.  Car.)  96,  17  Am.  Dec. 
710;  Tuttle  v.  Sowadzki,  41  Utah, 
501,  126  Pac.  959. 

As  to  the  question  of  the  aband- 
onment of  an  easement  of  light, 
see  Salem  City  Nat.  Bank  v.  Van 
Meter,  59  N.  J.  Eq.  32,  45  Atl. 
280,  61  N.  J.  Eq.  674,  47  Atl. 
1131;  Johnson  v.  Hahne,  61  N. 
J.  Eq.  438,  49  Atl.  5;  Fowler  v. 
Wick,  74  N.  J.  Eq.  603,  70  Atl. 
682,  and  the  many  English  cases 
cited  in  Gale,  Easements,  and 
Goddard,  Easements. 

65.  See  Norbury  v.  Meade,  3 
Bligh.  242;  Lovell  v.  Smith,  3  C. 
B.  N.  S.  120,  127;  Doe  d.  Put- 
land  V.  Hilder,  2  Barn.  &  Aid. 
782;  Winham  v.  McGuire,  51  Ga. 
578;  Adams  v.  Hodgkins,  109  Me. 
361,  42  L.  R.  A.  (N.  S.)  741,  84 
Atl.  530;  Brown  v.  Trustees  of 
Methodist  Episcopal  Church,  37 
Md.  108;  Suydam  v.  Dunton,  84 
Hun   (N.  Y.)    506,  32  N.  Y.  Supp. 


§  377]  Easements.  1379 

appear  to  have  had  any  practical  result  on  the  course 
of  decision.  Occasionally,  it  has  been  stated  that  an 
indication  of  intention  to  abandon  the  easement  is  not 
effective  to  extinguish  the  easement  unless  the  owner 
of  the  servient  tenement  is  induced  thereby  to  make 
expenditures  or  othersvise  to  alter  his  position,  thus 
in  effect  making  the  question  of  abandonment  a  ques- 
tion of  estoppel.^*'  But  this  is  evidently  not  in  accord 
with  the  great  weight  of  authority.  The  fact,  how- 
ever, that  the  person  asserting  the  abandonment  was 
induced,  by  the  course  of  action  of  the  owner  of 
the  easement,  to  assume  that  there  was  an  intention 
to  abandon  the  easement,  and  to  make  improvements 
on  the  strength  of  this  assumption,  would  presumably 
operate  in  favor  of  a  finding  of  abandonment,  or  as 
it  might  otherwise  be  expressed,  the  owner  of  the 
easement  might,  in  such  case,  be  regarded  as  estopped 
to  assert  the  easement.*'^'^ 

Xonuser  in  itself  does  not  terminate  an  easement 
acquired  by  grant,*'"  and,  as  above  stated,  it  is  at  most 
merely  one  of  the  facts  from  which  an  abandonment 
may  be  inferred.     The  fact  that  the  nonuser  continues 

333;    3    Kent,    Coram.    448;    God-  Y.  148,  116  N.  E.  862.    And  Poxt,  § 

dard,  Easements,  555.     The  whole  378. 

theory  of  extinguishment  of  ease-  67.     Moore  v.  Rawson,  3   Barn, 

ments  by  abandonment  is  severely  &  c.  332;   Smith  v.  Worn,  93  Cal. 

criticized    in    11    Columbia    Law  206,    28    Pac.    994;    Petitpierre    v. 

Rev.  at  p.  777.  Maguire,    155    Cal.    242,    100    Pac. 

66.     See  Smith  v.  Worn,  93  Cal.  690;    Dewire  v.  Hanley,  79  Conn. 

206,  28  Pac.  944;  Vance  v.  Adams  454,  65  Atl.   573;   Ford  v.  Harris, 

(Ky.)    112     S.     W.     927;     Day    v.  95  Ga.  97,  22  S.  E.  144;   Hoffthen 

Walden,    46   Mich.   575,    10   N.    W.  v.    Mede,    226    111.    320,    80    N.    E. 

26;    Scott   V.    Moore,    98   Va.    668,  893;    Edgerton    v.    McMuUan,    55 

81    Am.    St.    Rep.    749,    37    S.    E.  Kan.  90,  39  Pac.  1021;   Adams  v. 

?42.  Hodgkins,  109  Me.  361,  42  L.  R.  A. 

66a.     See  Trimble  v.  King,  131  (N.  S.)   741,  84  Atl.  530;   Dana  v. 

Ky.  1,  22  L.  R.  A.  (N.  S.)  880,  114  Valentine,    2    Allen    (Mass.)    128; 

S.  W.  317;  Patterson  v.  Chambers'  Hayford  v.  Spokesfield,  100  Mass. 

Power  Co.,  81  Ore.  328,   159   Pac.  491;      Butterfield     v.     Reed,     160 

568;    Andrews    v.    Cohen,    221    N.  Mass.  361,  35  N.  E.  1128;   Murphy 


1380 


Eeal  Propeety. 


[§  377 


for  the  prescriptive  period  is  immaterial,"''^  in  the 
absence  of  any  aaverse  acts  on  the  part  of  the  owner 
of  the  land."''' 

There  are  dicta  to  the  effect  that  an  easement  ac- 
quired by  prescription,  as  distinguished  from  one  ac- 
quired by  express  grant,  may  he  extinguished  by  non- 
user  alone,''^  though  in  but  one  case,  apparently,'^  is 
lliere  a  direct  decision  to  this  effect,  and  such  a  distinc- 
tion has  been  doubted,  apparently  with  good  reason.'^ 


Chair  Co.  v.  American  Radiator 
Co.,  172  Mich.  14,  137  N.  W.  791; 
Dulce  Realty  Co.  v.  Staed  Realty 
Co.,  254  Mo.  417,  151  S.  W.  415; 
Dill  V.  Board  of  Education  of  City 
of  Camden,  47  N.  J.  Eq.  421,  10 
L.  R.  A.  276,  20  Atl.  739;  Welsh 
V.  Taylor,  134  N.  Y.  450,  18  L.  R. 
A.  535,  31  N.  E.  896;  Willey  v. 
Norfolk  S.  R.  Co.,  96  N.  C.  408,  1  S. 
E.  446;  Hoffman  v.  Dorris,  83  Ore. 
625,  163  Pac.  972;  Bombaugh  v. 
Miller,  82  Pa.  St.  203;  Sweezy  v. 
Vallette,  37  R.  I.  51,  90  Atl.  1078; 
Boyd  V.  Hunt,  102  Tenn.  495,  52 
S.  W.  131;  Scott  V.  Moore,  98  Va. 
668,  81  Am.  St.  Rep.  749,  37  S.  E. 
342;  McCue  v.  Bellingham  Bay 
Water  Co.,  5  Wash.  156,  31  Pac. 
461. 

68.  Ward  v.  Ward,  7  Exch. 
838;  Nichols  v.  Peck,  70  Conn. 
439,  40  L.  R.  A.  81,  66  Am.  St. 
Rep.  122,  39  Atl.  803;  Ford  v. 
Harris,  95  Ga.  97,  22  S.  E.  144; 
Edgerton  v.  MoMullan,  55  Kan. 
90,  39  Pac.  1021;  Pratt  v.  Sweet- 
ser,  68  Me.  344;  King  v.  Murphy, 
140  Mass.  254,  4  N.  E.  566;  Butter- 
field  V.  Reed,  160  Mass.  361,  35 
N.  E.  1128;  Day  v.  Walden,  46 
Mich.  575,  10  N.  W.  26;  Wheeler 
V.  Wilder,  61  N.  H.  2;   Welsh  v. 


Taylor,  134  N.  Y.  450,  18  L.  R.  A. 
535,  31  N.  E.  896;  Lindeman  v. 
Lindsey,  69  Pa.  St.  93,  8  Am.  Rep. 
219;  Mason  v.  Horton,  67  Vt.  266, 
48  Am.   St.  Rep.  817,  31  Atl.  291. 

But  non  user  for  the  prescrip- 
tive period  has  occasionally  been 
regarded  as  creating  a  rebuttable 
presumption  of  intention  to  aban- 
don. Pratt  V.  Sweetser,  68  Me. 
344;  Dyer  v.  Dupui,  5  Whart. 
(Pa.)  584;  Hunter  v.  West,  172 
N.  C.  160,  90  S.  E.  130.  See  Reg 
V.  Chorley,  12  Q.  B.  515;  11  Hals- 
bury's  Laws  of  England,  278; 
Goddard,  Basements  (6th  Ed.), 
560. 

69.  Kuecken  v.  Voltz,  110  111. 
264;  Adams  v.  Hodgkins,  109  Me. 
361,  84  Atl.  530;  Wooster  v.  Fiske, 
115  Me.  161,  98  Atl.  378.  Browne 
V.  Baltimore  M.  E.  Church,  37 
Md.  108;  Arnold  v.  Stevens,  24 
Pick.  (Mass.)  106,  35  Am.  Dec. 
305;  iHayford  v.  Spokesfield,  100 
Mass.  491;  Smyles  v.  Hastings,  22 
N.  Y.  217;  Pope  v.  O'Hara,  48 
N.  Y.  446;  Nitzell  v.  Paschall,  3 
Rawle  (Pa.)  76.  See  Curran  v. 
City  of  Louisville,  83  Ky.  628; 
Wiilley  V.  Norfolk  R.  Co.,  96  N. 
C.  408,  1  S.  E.  446. 


§  378]  Easements.  1381 

In  a  few  states  this  asserted  distinction  has  been  in 
effect  embodied  in  a  statutory  provision  that  a  servitude 
acquired  by  enjoyment  may  be  extinguished  by  disuse 
thereof  for  the  period  prescribed  for  acquiring  title 
by   enjoyment.'^ 

According  to  a  few  decisions,  an  easement  cannot 
be  extinguished  by  abandonment,  unless  there  has  been 
a  failure  to  use  the  easement  for  a  period  equal  to 
that  necessary  for  the  creation  of  an  easement  by 
prescription,"^  but  this  view  has  not  been  generally 
adopted  J* 

§  378.  Executed  license.  It  has  been  decided  that 
if  one  who  has  an  easement  in  another's  land  gives  a 
license  to  the  0"s\Tier  of  the  servient  tenement  to  do 
something  thereon,  the  effect  of  which  is  to  obstruct  the 
exercise  of  the  easement,  and  the  licensee,  on  the 
faith  of  the  license,  makes  expenditures  for  improve- 
ments obstructive  of  the  easement,  the  easement  is 
extinguished.'^  Accordingly,  if  one  entitled  to  an  ease- 

70.  Rhodes  v,  Whitehead,  27  811;  Montana  Codes  1907,  §  4517; 
Tex.  304,  84  Am.   Dec.  631.  North  Dakota,  Comp.   Laws   1913, 

71.  See  Veghte  v.  Raritan  §  5340.  Oklahoma  Rev.  Laws  1910, 
Water  Power  Co.,  19  N.  J.  Eq.  §  6633;  South  Dakota  Civ.  Code, 
142.    Pratt    v.    Sweetser,    68    Me.  §    277. 

344;  Angell,  Water  Courses  (7th  73.  Cox  v.  Forrest,  60  Md.  74; 
Ed.)  §  252,  note;  3  Kent,  Comm.  Wilder  v.  City  of  St.  Paul,  12 
450,  note  by  Mr.  Justice  Holmes.  .Minn.  192;  Corning  v.  Gould,  16 
The  distinction  is  not  recognized  Wend.  (N.  Y.)  531. 
in  England.  See  Gale,  Ease-  74.  See  Reg  v.  Chorley,  12  Q. 
ments,  527.  In  Hale  v.  Oldroyd,  B.  515;  Moore  v.  Rawson,  3  Barn. 
14  Mees.  &  W.  789;  Ward  v.  Ward,  &  C  332;  Louisville,  &  N.  R.  Co., 
7  Exch.  838;  Lovell  v.  Smith,  3  v.  Covington,  2  Bush  (Ky.)  526; 
C.  B.  (N.  S.)  120,— all  cases  of  Fitzpatrick  y.  Boston,  &  M.  R. 
prescriptive  easements, — nonuser  R.,  84  Me.  33,  24  Atl.  432.  Canny 
lor  the  statutory  period  was  not  v.  Andrews,  123  Mass  155;  Steere 
regarded  as  in  itself  extinguish-  v.  Tiffany,  13  R.  L  568. 
ing  the  right,  no  reference  being  75.  Winter  v.  Brockwell,  8 
made  to  any  such  distinction  as  East,  308,  as  explained  in  Hew- 
that  referred  to  above.  lins    v.    Shippam,    5    Barn.    &    C. 

72.  California     Civ.     Code,      §  221;  Liggins  v.  Inge,  7  Bing.  682; 


1382  Eeal  Peoperty.  [§  378 

ment  of  light  over  another's  land  gives  a  license  to 
the  owner  of  the  servient  tenement  to  erect  a 
building  thereon  which  will  prevent  the  passage  of 
light,  and  the  building  is  erected  accordingly,  the 
easement  of  light  is  extinguished;'^*'  and,  if  one  en- 
titled to  flow  another's  land  gives  such  other  a 
license  to  erect  an  embankment  preventing  such 
flow,  and  the  embankment  is  erected,  the  easement 
of  flowage  is  extinguished."  These  decisions  have 
been  referred  to  in  some  jurisdictions  as  representing 
an  exception  to  the  general  rule  that  a  license  is  revo- 
cable even  though  followed  by  improvements  on  the 
faith  thereof,'^  but  they  may  more  satisfactorily,  it 
is  conceived,  be  regarded  as  applications  of  the  doc- 
trine of  estoppel.  Just  as  one  who  undertakes  orally 
to  grant  an  easement  is,  after  the  intended  grantee 
makes  improvements  on  the  strength  thereof,  estopped 
to  deny  the  validity  of  the  grant,^*^  so  one  who  under- 
takes orally  to  release  an  easement  by  authorizing 
the  construction  of  improvements  which  will  prevent  its 

Boston,  &  P.  R.  Corp.  v   Doherty,  laid    down    in    the    books,    that   a 

154  Mass.  314,  28  N.  E.  277;  Cart-  license  executed  cannot  be  coun- 

wright  V.  Maplesden,  53  N.  Y.  622;  termanded,    is    not    applicable    to 

Addison  v.  Hack,  2  Gill  (Md.)  221,  licenses  which,  if  given  by  deed, 

41  Am.  Dec.  421;  Vogler  v.  Geiss,  would  create  an  easement,  but  to 

51    Md.    407.    Davidson    v     Kretz,  licenses  which,  if  given  by  deed, 

127  Minn.  313,  149  N.  W.  652.  See  would    extinguish    or    modify    an 

Stein    V.    Dahm,    96    Ala.    481,    11  easement.     They   also   show   that 

So.  597.  the    distinction,    sometimes   taken 

76.  Winter  v.  Brockwell,  8  in  the  books,  between  a  license  to 
East,  308.  The  doctrine  has  been  do  acts  on  the  licensee's  own 
held  to  be  applicable  to  the  so-  land,  and  a  license  to  do  acts  on 
called  easements  of  light,  air,  and  the  licensor's  land,  is  the  same 
access  in  the  owner  of  land  abut-  'distinction  that  is  made  between 
ting  on  a  highway.  White  v.  Man-  licenses  which,  if  held  valid, 
hattan  Ry.  Co.,  139  N.  Y.  19,  34  N.  would  create,  and  licenses  which 
E.   887.     See  Post,  §  417.  extinguish    or    modify,    an    ease- 

77.  Morse  v.  Copeland,  2  Gray  ment."  Metcalf,  J.,  in  Morse  v. 
(Mass.)   302.  Copeland,  2  Gray  (Mass.)  302. 

78.  "The  authorities  *  *  *  79.  Ante,  §  349(d)  notes  44-49. 
show    that    the    rule,    sometimes 


§  378]  Easements.  1383 

exercise,  is  thereafter  estopped  to  deny  the  validity 
of  the  release.  If  he  evidently  does  not  intend  to  re- 
lease the  easement,  as  when  he  gives  permission  to  con- 
struct merely  a  temporary  obstruction,  the  fact  that 
such  obstruction  is  erected  would  apparently  not  pre- 
clude  him  from   afterwards   asserting   the   easement.^*' 

Attention  has,^"*^  in  this  connection,  been  called  to 
the  consideration  that,  after  the  obstruction  has  been 
erected  on  the  servient  tenement  under  license  from 
the  owner  of  the  dominant  tenement,  the  latter  is 
powerless  to  remove  it  or  to  compel  its  removal,  and 
that  this  in  itself  precludes  him  from  again  exercising 
the  easement  until  the  owner  of  the  servient  tenement 
voluntarily  removes  the  obstruction,  or  it  is  removed 
by  natural   causes. 

In  the  case  of  a  license  to  obstruct  a  way  at  a 
particular  point  only,  the  fact  of  the  construction  of 
the  obstruction  in  accordance  therewith,  while  it  may 
properly  be  regarded  as  extinguishing  the  way  at  that 
point,  and,  by  reason  of  the  physical  conditions  of  the 
way,  such  partial  extinguishment  may  necessarily  in- 
volve a  total  disuse  of  the  way,^^  it  may  occur  that 
a  right  of  passage  by  or  around  the  obstruction  is  sub- 
stituted by  agreement,^^  with  the  result  that  the  way 
still  exists  over  the  servient  tenement  except  at  the 
point  at  which  the  obstruction  occurs.*^  The  fact  that, 
without  having  given  any  express  license  to  obstruct  the 
way,  the  owner  of  the  dominant  tenement  makes  no 
objection  to  the  erection  of  a  structure  which  has  that 
effect,  does  not  necessarily,  it  seems,  preclude  him  from 

80.  See  Vogler  v.  Geiss,  51  Md.       R.    Corp.    v.    Doherty,    154    Mass. 
407.  314,    28    N.    E.    277;    Davidson    v. 

80a.     See  editorial  note,  11  Co-  Kretz,   127   Minn.   313,   149   N.   W. 

lumbia  Law  Rev.  at  p.  78.  652. 

81.  See    Vogler    v.     Geiss,     51  82.     Ante,  §  367,  notes  12-17. 
Md.    407;    Cartwright   v.    Maples-  83.     See     Peck     v.     Lloyd,     38 
den,  53  N.  Y.  622;  Aldrich  v.  Rill-  Conn.  566;   Hall  v.  Hall,  106  Me. 
ings,   14   R.   I.   233;    Boston   &   P.  389,  76  Atl.  705. 


1384  Real  Property.  [§  379 

afterwards  asserting  bis  right  of  passage  if  tlie  owner 
of  the  servient  tenement  knew,  or  had  reason  to  know, 
of  the  easement.s^  But  the  physical  conditions  of  the 
way  and  the  other  circumstances  may  be  such  as  to 
justify  an  inference  that  another  place  of  passage  has 
been  substituted  by  mutual  assent.^^ 

§  379.  Adverse  user  of  land.  An  easement  may  be 
extinguished  by  the  user  of  the  servient  tenement  in 
a  manner  adverse  to  the  exercise  of  the  easement, 
for  the  period  required  to  give  title  to  land  by  adverse 
possession,^^  a  subject  hereafter  discussed.^'  The  mere 
fact,  however,  that  the  servient  owner  uses  the  land 
without  reference  to  the  existence  of  the  easement, 
does  not  render  his  user  adverse,  since  he  may  do  this 
merely  as  a  consequence  of  the  failure  to  exercise  the 
easement.  He  must  in  some  way  actively  interfere  with 
the  exercise  of  the  easement,  to  such  an  extent  as  to 
give  a  right  of  action  against  him  for  disturbance  of 
the   easement.^ ^     Consequently,   the   maintenance   of   a 

84.  Welsh  V.  Taylor,  134  N.  Y.  N.  E.  396;  Dill  v.  Board  of  Educa- 
450,  18  L.  R.  A.  535,  31  N.  E.  tion  of  City  of  Camden,  47  N.  J. 
896;  Oberheim  v.  Reeside,  116  Eq.  421,  10  L.  R.  A.  276,  20  Atl. 
Md.  265,  81  Atl.  590.  But  see  739;  Woodruff  v.  Paddock,  130  N. 
Arnold  v.  Cornman,  50  Pa.  361.  Y.    618,   29    N.    E.    1021;    State   v. 

85.  Fitzpatrick  v.  Boston  &  Suttle,  115  N.  C.  784,  20  S.  E. 
M.  R.  R.,  84  Me.  33,  24  Atl.  432;  725;  Hoffman  v.  Dorris,  83  Ore. 
ante,  §  367,  notes  12-17.  625,    163    Pac.    972;    Spackman   v. 

86.  Wall  V.  United  States  Min-  Steidel,  88  Pa.  St.  453;  Jessop  v. 
Ing  Co.,  239  Fed.  90,  152  C.  C.  A.  Borough  of  Kittaning,  225  Pa.  St. 
140;  Jesse  French  Piano  &  Organ  589,  74  Atl.  554;  Bentley  v.  Root, 
Co.  V.  Forbes,  129  Ala.  471,  87  19  R.  I.  205,  32  Atl.  918;  Bowen 
Am.  St.  Rep.  71,  29  So.  683;  v.  Team,  6  Rich.  Law  (S.  C.)  298, 
Louisville  &  N.  R.  Co.  v.  Quinn,  60  Am.  Dec.  127;  City  of  Galves- 
94  Ky.  310,  22  S.  W.  221;  Balti-  ton  v.  Williams,  69  Tex.  449,  6  S. 
more,   City   of,   v.    Canton    Co.    of  W.  860. 

Baltimore,    124    Md.    620,    93    Atl.  87.     Post,   §§  500-513. 

144;     Smith    v.     Langewald,     140  88.     Edgerton   v.    McMullan,    55 

Mass.  205,  4  N.  E.  571;   Burnham  Kan.   90,   39   Pac.   1021;    Smith   v. 

V.    Mahoney,    222    Mass.    524,    111  Langewald,    140    Mass.    205,    4    N. 


^  380]  Easements.  1385 

gate  across  a  way  would  not  usually  involve  an  adverse 
user  of  the  land,  it  not  being  such  as  to  give  a  right 
of  action.^^  A  mere  notice  by  the  owner  of  the  land  to 
the  person  having  the  easement,  demanding  that  the 
latter  cease  to  make  use  of  the  land,  and  in  effect  deny- 
ing the  existence  of  the  easement,  does  not  constitute 
an  actionable  obstruction  thereof,^^*^  and  consequently 
the  continuance  of  such  denial  for  the  statutory  period, 
if  unattended  by  any  actual  interference  with  the  exer- 
cise of  the  easement,  will  not  affect  the  existence  of 
of  the  easement. 

The  adverse  user  may  be,  not  only  by  the  o^\^ler 
of  the  servient  tenement,  but  also  by  another  person,*^*^ 
and  such  other  person  may  be  one  who  has  also  an 
easement  in  the  same  land.^^  That  is,  if  there  is  ad- 
verse possession  sufficient  to  divest  a  fee  simple  title 
to  land,  it  will  also  operate  to  extinguish  an  easement 
in  such  land,  without  reference  to  whether  the  adverse 
possessor  pre\dously  had  himself  an  estate  or  an 
easement  in  the  land. 

§  380.    In  favor  of  innocent  purchaser.     An  ease 
ment  is,  in   effect,  as   a  general  rule,   extinguished  as 
to  a  purchaser  for  value  of  the  servient  tenement,  if 

E.    571;    Butterfield   v.    Reed,    160  C.  160,  90  S.  E.  130. 

Mass.  361,  35  N.  E.  1128;   Day  v.  89.     Welsh  v.  Taylor,  134  N.  Y. 

Walden,   46    Mich.    575,    10    N.   W.  450,    18    L.    R.    A.    535,    31    N.    E. 

26;   Dill  V.  Board  of  Education  of  896;    State  v.   Pettis,   7   Rich.    (S. 

City  of  Camden,  47  N.  J.  Eq.  421,  Car.)     390;    Boyd     v.    Hunt,     102 

10     L.    R.     A.    276,     20    Atl.     739;  Tenn.   495,  52   S.   W.   131. 

Andrus  v.  National   Sugar   Refin-  89a.     Dana    v.    Smith,    114    Me. 

ing  Co.,   183   N.   Y.   580,   76   N.   E.  262,  95  Atl.  1034;  Compare,  Dost,  § 

1088;    State   v.    Suttle,    115    N.    C.  528. 

784,    20    S.     E.    725;     Lindsey    v.  90.     San    Francisco    v.    Calder- 

Lindeman,    69    Pa.    St.    93,    8   Am.  wood,    31    Cal.    585,    91   Am.    Dec. 

Rep.     219;     James    v.     Stevenson  542. 

(1893),   App.    Cas.    162.      But    see  91.     Goodwin     v.     Bragaw,     87 

Baugh   V.    Arnold,    123    Md.    6,    91  Conn.  31,  86  Atl.  668. 

Atl.  151;   Hunter  v.   West,  172  N. 


1386  Real  Peopebty.  [§  380 

lie  purchases  mthout  notice,  either  actual  or  con- 
structive,^^'' of  the  easement,^^  while  he  takes  subject  to 
the  easement  if  he  has  notice  thereof.^" 

In  the  case  of  an  easement  created  by  express 
grant,  the  right  of  the  innocent  purchaser  for  value 
of  the  servient  tenement  to  hold  the  land  free  from  the 
burden  of  the  easement  is  obviously  by  reason  of  the 
recording  laws,  which  invalidate  an  unrecorded  con- 
veyance as  against  a  purchaser  without  notice,^^  and 
the  same  is  true  of  an  easement  created  by  "implied 
grant"  so  called,^^  which  is  properly,  as  before  ex- 
plained, an  express  grant  extended  by  construction  to 
include  an  easement  appurtenant  to  the  land  conveyed. 
In  the  case  of  a  prescriplive  easement,  however,  the 
recording  acts,  as  ordinarily  phrased,  cannot  well 
apply  to  protect  an  innocent  purchaser,  since  they  have 
to  do  with  priorities  as  between  instruments  affecting 
land,  while  if  the  easement  is  prescriptive  the  question 
is  one  of  priority  as  between  a  claim  under  an  instru- 

91a.     Post,  §  511.  27  N.  E.  344;  Wissler  v.  Hershey. 

92.     Mesmer    v.     Uharriet,     174  23    Pt.    St.    333. 

Cal.   110,    162   Pac.   104;    Rives   v.  93.     Pollard     v.     Rebman,     162 

Hickey,  1  MacArthur   (D.  C.)   83;  Cal.  633,  124  Pac.  235;  Ashelford 

Rome     Gaslight     Co.     v.     Meyer-  v.   Willis,    194    111.    492,    62   N.    E. 

hardt,  61  Ga.  287;   Armor  v.  Pye,  817;    Downey  v.  Hood,  203  Mass. 

25    Kan.    731;    Jobling    v.    Tuttle,  4,  89  N.  E.  24;   Dinneen  v.  Corp- 

75  Kan.   351,  9   L.   R.   A.    (N.   S.)  oration,  etc.,  114  Md.  589,  79  Atl. 

960,     89     Pac.     699;     Corning     v.  i021;  Murphy  Chair  Co.  v.  Ameri- 

Gould,    16    Wend.     (N.    Y.)     531;  can    Radiator    Co.,    172    Mich.    14. 

Taylor  v.  Millard,   118  N.  Y.  244,  137     n.     W.     791;     Litchfield     v. 

6   L.  R.  A.  667,  23   N.   E.  376,  af-  Boogher,   238   Mo.   472,   142   S.   W. 

firming    42    Hun,    363;      Tise    v.  302;    Reid  v.  King,  158   N.  0.  85, 

Whitaker   Harvey    Co.,   144   N.   C.  73    S.    E.    168;    Shields    v.    Titus, 

507;    Ricks  v.  Scott,   117  Va.  370,  46    Ohio    St.    528;     Patterson    v. 

84   S.   E.   676;    Roe   v.   Walsh,   76  Chambers'  Power  Co.,  81  Ore.  328, 

Wash.  148,  135  Pac.  1031,  136  Pac.  159   Pac.   568;    Little   v.    Gibb,   57 

1146;    Pentland  v.  Keep,  41  Wis.  Wash.    92,    106    Pac.    491;    Proud- 

490;   Taggart  v.  Warner,  83  Wis.  foot  v.  Saffle,  62  W.  Va.  51,  57  S. 

1,   53   N.  W.   33.     See  McCann  v.  E.  256;   Forde  v.  Libby,  22  Wyo. 

Day,  57  111.  101;   Ellis  v.  Bassett.  464,   143    Pac.   1190. 
128  Ind.  118,  25  Am.  St.  Rep.  421, 


^  380] 


Easements. 


1387 


ment  and  a  claim  not  under  an  instrument.  In 
one  state  there  are  decisions  to  this  effect,  that 
a  purchaser  of  land  takes  it  subject  to  a  iDrescrip- 
tive  easement  thereon,  even  though  he  has  no  notice, 
actual  or  constructive.'^*^'  There  are  on  the  other  hand 
occasional  decisions  that  the  purchaser  in  such  cas^ 
takes  free  from  the  easement,  the  courts  ignoring  the 
consideration  that  the  doctrine  of  notice,  as  regards 
legal  rigljts,  is  based  upon  the  recording  acts  and  has 
no  existence  apart  therefrom.^  ^ 


94.  Post,  §  567. 

95.  Quinlan  v.  Noble,  75  Cal. 
250,  17  Pac.  69;  Ingals  v.  Plamon- 
don,  75  111.  118;  Shepardson  v. 
Perkins,  58  N.  H.  354;  Muir  v. 
Cox,  110  Ky.  560,  62  S.  W.  723; 
Havens  v.  Klein,  51  How.  Pr.  (N. 
Y.)  82;  Rollo  v.  Nelson,  34  Utah, 
116,  26  L.  R.  A.  (N.  S.)  315,  96 
Pac.  315;  Hair  v.  Downing,  96  N. 
Car.  172,  2  S.  E.  520;  Eliason  v. 
Grove,  85  Md.  215,  36  Atl.  844; 
Muse  V.  Gish,  114  Va.  90,  75  S. 
E.  764.     See  also  citations,   ante. 


§  363c,  note  80. 

96.  Johnson  v.  Knapp,  146 
Mass.  70,  15  N.  E.  134;  Shaugh- 
nessy  v.  Leary,  162  Mass.  108,  38 
N.  E.  197.  See  cases  cited,  Post, 
§   531. 

97.  Schmidt  v.  Brown,  226  111. 
590,  80  N.  E.  1071;  Jobling  v. 
Tuttle,  75  Kan.  351,  9  L.  R.  A. 
N.  S.  960,  89  Pac.  699;  Sparks  v. 
Rogers,  29  Ky.  Law  Rep.  1170, 
97  S.  W.  11;  Van  De  Vanter  v. 
Flaherty,  37  Wash.  218,  79  Pac. 
794. 


CHAPTER  XIII. 

PROFIT'S  A  PRENDRE. 

§  381.  General   considerations. 

a82.  Rights  in  gross  and  appurtenant. 

383.  Rights  of  common. 

384.  Rights  of  pasture. 

385.  Mineral  rights. 

386.  The  creation  of  rights. 

387.  Apportionment  and  extinction. 

§  381.  General  considerations.  A  profi  a  prendre 
involves  primarily  a  power  to  acquire,  by  severance 
or  removal  from  another's  land,  some  thing  or  things 
previously  constituting  a  part  of  the  land,  or  appertain- 
ing thereto,  the  holder  of  the  profit  a  prendre  having, 
as  an  integral  part  thereof,  rights  against  the  mem- 
bers of  the  community  generally  that  they  shall  not 
interfere  with  the  exercise  or  enjoyment  of  the  power. ^ 
As  instances  of  pro-fits  a  prendre  may  be  mentioned 
rights  to  take  from  another's  land,  and  so  acquire  as 
one'  own,  wood,-  herbage,^  or  coal  or  other  minerals,* 
this  latter  being  at  the  present  day  the  most  important 
class  of  such  rights.  Likewise,  one  may  have  the 
right  to  kill  and  take  as  his  own  game  on  another's 
land,^   fish   in  waters   thereon,^   seaweed  cast  thereon,"^ 

1.  For  a  justifiable  criticism  of  5.  Wickham  v.  Hawker,  7 
a  former  definition  by  the  pres-  Mees.  &  W.  63;  Webber  v.  Lee,  9 
ent  writer,  see  Professor  Hoh-  Q.  B.  D.  315;  Bingham  v.  Salene, 
field's  article  in  27  Yale  Law  15  Ore.  208,  3  Am.  St.  Rep.  152, 
Journ.  at  p.  70.  14   Pac.   523. 

2.  Reg  V.  Chamberlains,  9  6.  Fitzgerald  v.  Firbank, 
Adol.  &  E.  444;  Clark  v.  Way,  [1897]  2  Ch.  96;  Turner  v.  Heb- 
11  Rich.    (S.  C.)    621.  ron,    61    Conn.    175,    14    L.    R.    A. 

3.  Co.  Litt.  4b,  122a;    Johnson  386,  22  Atl.  951. 

V.  Barnes,  L.  R.  8  C.  P.  527.  7.     Hill  v.  Lord,  48  Me.  83;  Sale 

4.  Post,  §   385.  V.   Pratt,  19  Pick.    (Mass.)    191. 


§  381]  Profits  a  Prendre.  1389 

or  soil,  sand  and  gravel  tlierein.^  A  right  to  take  ice 
has  been  regarded  as  a  profit  a  prendre.^'^ 

A  profit  a  prendre  maj^  be  exclusive  of  any  right 
in  the  land  owner  or  in  other  persons  to  take  that 
l)arti(iilar  profit,  or  it  may  not  be  so  exclusive/'  In 
the  case  of  an  exclusive  right  of  profit  the  one  entitled 
thereto,  having  begun  the  exercise  thereof,  has  been 
regarded  to  that  extent  as  in  possession  of  the  land, 
so  as  to  be  entitled  to  maintain  an  action  of  trespass 
quare  clausum  fregit  against  a  person  interfering 
therewith. ^*^ 

A  profit  a  prendre,  like  an  easement,  may  be 
created  to  endure  in  perpetuity,  that  is,  for  the  duration 
of  an  estate  in  fee  simple,  or  for  a  less  period,  such 
as  a  term  of  years,^^  or  it  may  even  be  terminable 
at  the  will  of  either  the  land  owner  or  the  owner  of 
the  profit. ^^^  — 

A  profit  a  prendre  involves  a  right  to  do  such 
things  on  the  land  in  which  the  right  exists  as  are  rea- 
sonably necessary  for  the  exercise  of  the  right.  Thus, 
one  to  whom  is  given  the  right  to  take  timber  from  land 
may  enter  oh  the  land  to  do  so,^^  and  one  given  a 
right  to  mine  may  cut  through  the  soil  for  that  purpose, 
and     erect    necessary    mining    machinerj^^^a 

8.  MaxweU  v  Martin,  6  Bing.  Rep.  329;  Harker  v.  Birkbeck,  3 
522;  Blewett  v.  Tregonning,  3  Ad.  Burr.  1556;  Wilson  v.  Mackreth. 
&  El.  554;  Constable  v.  Nicholson,  3  Burr.  1824;  Crosby  v.  Wiads- 
14  C.  B.  N.  C.  230;  Merwin  v.  worth,  6  East.  602;  Holford  v. 
Wheeler,  41  Conn.  25;  Wenger  v.  Bailey,  13  Q.  B.  426;  Fitzgerald 
Clay  Tp.  61  of  St.  Joseph  County,  v   Firbank  [1897]  2  Ch.  96. 

61  Ind.  App.   640,  112  N.  E.  402;  11.     Hooper    v.    Clark,   L.    R.    2 

Perley   v.   Langley,   7   N.   H.   233;  Q.   B.  200;    Fitzgerald   v.  Firbank 

Hopper    V    Herring,    75    N.    J.    L.  (1897)   2  Ch.   96.   Davis  v.   Miller- 

212,  67  Atl.  714;   Texas  &  P.  Ry.  Brent   Lumber   Co.,   151   Ala.    580, 

Co.  V.  Durrett,  57  Tex.  48.  44    So.    639. 

8a.     Mitchell    v.    D'Olier,    62    N.  11a.     Christian     v.     Stlth     Coal 

J.  L.  375,  59  L.  R.  A.  949,  53  Atl.  Co.,  189  Ala.  500,  66  So.  641. 

467.   Huntington    v.    Asher,    96    N.  12.     Liford's  Case,  11  Coke,  52a; 

Y.  604.  Leake,  Prop,  in  Land,  349. 

9.  Post,   §  383.  12a.     Cardigan    v.    Armitage,    2 

10.  Burt    V.    Moore,     5    Terra        Barn.  &  C.   197;    Dand   v.   Kings- 
2  R.  P.— 13 


1390  Eeal  Property.  [§  381 

That  one  has  the  exclusive  right  of  hunting  wild 
fowl  on  another's  land  has  been  held  not  to  affect  the 
right  of  the  latter  to  drain  or  otherwise  change  the 
land,  provided  he  does  this  in  good  faith  to  improve  the 
land,  though  this  detracts  from  the  value  of  the 
hunting    privilege. ^^'' 

Right    to    take    water.      The    right    to    take 

water  upon  another's  land  from  such  a  natural  source 
of  supply  as  a  pond  or  spring,  has  been  regarded  as 
an  easement  and  not  a  profit  a  prendre,  on  the  theory 
that  the  water  does  not  belong  to  the  owner  of  the 
land  on  or  by  which  it  flows,  and  consequently  the 
grant  of  the  right  to  take  it,  while  valid  in  so  far 
as  it  gives  an  easement  to  jiass  over  the  land  to  reach 
the  water,  is  a  nullity  as  regards  the  water.^^  And 
likewise,  as  the  owner  of  land  abutting  on  a  natural 
watercourse  has  no  ownership  of  the  water  therein, '■^•'^  a 
grant  by  him  of  the  right  to  take  water  from  the 
stream  would  seem  to  involve  merely  the  creation 
of  an  easement. ^^'^  In  so  far  as  water  on  one's  land 
can  be  regarded  as  not  puhlici  juris,  but  as  belonging 

cote,  6  Mees.  &  W.  174;  WiUiams  65   N.   W.   911. 
V.  Gibson,  84  Ala.  228,  5  Am.  St.  In  Turner  v.  Hebron,  61  Conn. 

Rep.    368,    4    So.    350;    Marvin    v.  175,  14  L.  R.  A.  386,  22  Atl.  951, 

Brewster  Iron  Min.  Co.,  55  N.  Y.  it  was  held  that  one  person  could 

538,    14    Am.    Rep.    322;    Wardell  own  the   water   in   a  large  pond, 

V.   Watson,    93   Mo.    107,   5    S.   W.  with  the  incidental  right  of  fish- 

605.  ing   therein,    while   another   own- 

12b.     Isherwood    v.    Salene,    61  ed    the    bed   of   the    pond. 
Ore.  572,  40  L.  R.  A.   (N.  S.)   299,  The  view  that  a  right  to  take 

Ann.    Cas.    1914B,    542,    123    Pac.  vater  is  an  easement  rather  than 

49.  a  profit  a  prendre  is  perhaps  not 

13.  Race  v.  Ward,  4  El.  &  Bl.  entirely  in  accord  with  the  cases 
702;  Manning  V.  Wasdale,  5  Adol.  regarding  a  right  to  take  ice 
&  E.  758;  Hill  v.  Lord,  48  Me.  83.  as  a  profit  A  prendre.  Mitchell 
Goodrich  v.  Burbank,  12  Allen  v.  D'Olier,  68  N.  J.  L.  375,  59 
(Mass.)  459,  90  Am.  Dec.  161.  L.  R.  A.  949,  53  Atl.  467;  Hunt- 
See  Legg  V.  Horn,  45  Conn.  409.  ington  v.  Asher,  96  N.  Y.  604. 

But  that  water  issuing  from  a  13a.     Ante,    §    339(a). 

spring    is    private    property,    see  13b.     Ante,  §  352. 

Metcalf    V     Nelson,    8    S.    D.    87, 


§  381]  Profits  a  Prendre.  1391 

to  him  personally,  as  when  it  is  accumulated  by  him  in 
a  cistern  or  aqueduct,^^*^  since  the  water  is  not  a  part 
of  the  land,  the  grant  of  such  w^ater  would  be,  not 
the  grant  of  a  right  of  profit,  but  rather  the  grant 
of  a  chattel,  with  an  incidental  right  to  come  on  the 
land  for  the  purpose  of  taking  it,  that  is,  using  the 
terminology  of  the  older  books,  there  is  in  such  case  a 
license  coupled  with  an  interest.^^^  But  in  those 
states  in  which  water  from  natural  streams  is  regu- 
larly distributed  by  means  of  aqueducts  and  ditches 
controlled  by  irrigation  companies,  contracts  with  such 
companies  are  regarded  as  having  "for  their  subject 
matter  the  usufruct  in  the  stream  (and  not  the  w^ater 
itself)  through  the  intermediate  agency  of  the  ditch, 
affecting  the  water  right  in  the  stream  from  which  the 
ditch  heads.  So  far  as  the  water  in  the  canal  is  per- 
sonalty, it  is  personalty  of  the  consumers  as  w^ell  as 
of  the  company,  the  company  being  chiefly  the  agent 
of  the  consumers  to  make  the  diversion  and  carry  the 
water,  "^^® 

License   privilege   distinguished.     One   having 

a  profit  a  (prendre  has  a  right,  as  against  the  mem- 
])ers  of  the  community  generally,  including  the  owner 
of  the  land,  that  they  shall  not  interfere  with  the 
exercise  or  .enjoyment  of  the  profit.'^  It  is  in  this 
respect  that  a  license  to  sever  particular  things  from 
the  land  is  to  be  distinguished  from  a  profit  a  prendre, 
the  licensee  having  no  right  to  freedom  from  inter- 
ference by  third  persons  or  by  the  landowner  himself, 
the  distinction  between  a  license  and  a  profit  a  prendre 
l>eing  in  a  general  way  similar  to  that  between  a 
license  and  an  easement.^  ^     It  is  as  a  result,  it  seems, 

13c.     Ante,  §  339(a).  umbia    Law    Rev.    251,    30    Harv. 

13d.     Ante,  §  349(d).  Law  Rev.  297. 

13e.     Samuel     C.      Wiel,     Esq.,  14.     See    cases    cited    inle,   this 

article   22   Harv.  Law   Rev.   at   p.  section,    note    11. 

213.     See  editorial  notes,  13  Col-  15.     ^nte,  §  349(a). 


1392  Eeal  Pkoperty.  [§382 

of  the  absence  of  any  duty  on  the  part  of  the  landowner 
to  refrain  from  interference  with  the  exercise  of  the 
license  privilege  that  the  license  is  revocable  at  the 
pleasure  of  the  licensor. 

Not  infrequently  a  landowner  licenses  another 
to  sever  from  the  land  some  particular  subject  of  profit, 
with  the  intention  that  the  license,  on  effecting  such 
severance,  shall  become  the  owner  of  the  thing  severed, 
as  for  instance,  when  the  landowner  orally  licenses 
another  to  cut  timber  or  remove  minerals.  In  such 
a  case  there  is  both  a  license  to  sever  the  wood  or 
minerals  and  an  oral  gift  or  sale  of  them,  the  gift  or 
sale  taking  effect,  for  the  purpose  of  transferring  the 
owmership  to  the  licensee,  so  soon  as  they  become 
chattels  by  reason  of  their  severance. ^"^ 

§  382.  Rights  in  gross  and  appurtenant.  Eights 
to  take  profits  from  another's  land  may  exist  in  gross, 
— that  is,  they  may  be  held  by  one  independently  of 
his  ownership  of  other  land,  the  rule  in  this  respect 
differing  in  England  from  that  usually  regarded  as 
applying  to  easements,  unattended  with  a  right  of 
profit.^"  They  may,  however,  be  appurtenant  to  other 
land,  the  land  to  which  the  right  ap])ertains  being  then 
the  "dominant  tenement,"  and  the  land  from  which 
the  profits  are  taken  being  the  ''servient 'tenement.'"^ 

16.  Ante,    §    261.  18.     PhiHips  v.  Rhodes,  7  Mete. 

17.  Welcome  v.  Upton,  6  Mees.  (Mass.)  322;  Goodrich  v.  Bur- 
&  W.  536;  Shuttleworth  v.  Le  bank,  12  Allen  (Mass.)  459,  90 
Fleming,  19  C.  B.  (N.  S.)  687;  Am.  Dec.  161;  Huntington  v. 
Pierce  v.  Keator,  70  N.  Y.  419,  Asher,  96  N.  Y.  604;  Bingham  v. 
26  Am.  Rep.  612;  Tinicum  Fish-  Salene,  15  Ore.  208,  14  Pac.  523, 
ing  Co.  V.  Carter,  61  Pa.  St.  21.  3  Am.  St.  Rep.  152;  Grubb  v. 
100  Am.  Dec.  597;  Youghiogheny  Grubb,  74  Pa.  St.  25;  Hall  v.  Law- 
River  Coal  Co.  V.  Pierce,  153  Pa.  rence,  2  R.  I.  218,  57  Am.  Dec. 
St.  74,  25  Atl.  1026;  Cadwalader  715;  Chase  v.  Cram,  39  R.  I.  83, 
V.  Bailey,  17  R.  I.  495,  14  L.  R.  97  Atl.  481,  802.  And  see  cases 
A.  300,  23  Atl.  20.  Williams,  Rights  in  notes  following. 

of  Common,  184,  195,  203,  207. 


§  382] 


Profits  a  Peendbe. 


1393 


A  profit  a  prendre  in  gross  is  ordinarily  regarded  as 
freely  transferable  and  inheritable.^^  A  profit  a  pren- 
dre appurtenant  passes  prima  facie  upon  a  transfer  of 
the    dominant    tenement.^"'' 

A  right  of  profit,  in  order  that  it  may  be  appur- 
tenant to  other  land,  and  pass  therewith,  must  be  in 
some  way  connected  with  the  enjoyment  of  the  right  of 
property  in  the  dominant  tenement,  and  must  be  lim- 
ited by  the  needs  of  the  latter.^^"  Consequently  one 
cannot  claim  as  appurtenant  to  land  owaied  by  him  a 
right  to  take  all  the  wood  which  may  grow  on  other 
land,  and  dispose  of  it  as  he  pleases,^*'  or  a  right  to 
take  turf  or  seaw^eed  from  other  land,  without  regard 
to  the  requirements  of  his  own  tenement.^ ^ 

Since  a  right  of  profit  appurtenant  is  limited  and 
admeasured  by  the  uses  of  the  dominant  tenement,  it 
follows  that  such  profit  cannot  be  separated  from  the 
latter  by  a  grant  thereof  to  a  third  person  without 
the  tenement.^^ 


19.  Welcome  v.  Upton,  6  Mees. 
&  W.  536;  Muskett  v.  Hill,  5 
Eing.  N.  C.  694;  Grubb  v.  Bayard, 
2  Wall.  Jr.  81;  Gaston  v.  Plum, 
14  Conn.  344;  New  Haven  v. 
Hotchkiss,  77  Conn.  168,  58  Atl. 
753;  Baker  v.  Kenney,  145  Iowa, 
638,  139  Am.  St.  Rep.  456,  124  N. 
W.  901;  Harlow  v.  Lake  Superior 
Iron  Co.,  36  Mich.  105;  Negaunee 
Iron  Co.  V.  Iron  Cliffs  Co.,  134 
Mich.  264,  96  N.  W.  468;  Boat- 
man V.  Lasley,  23  Ohio  St.  614; 
Tinicum  Fishing  Co.  v.  Carter,  61 
Pa.  St.  21,  100  Am.  Dec.  597; 
Cadwalader  v.  Bailey,  17  R.  I. 
498,  14  L.  R.  A.  300,  23  Atl.  20. 

19a.  Warrick  v.  Queen's  Col- 
lege, 6  Ch.  App.  716;  Hopper  v. 
Herring,  75  N.  J.  L.  212,  67  Atl. 
714;   Huff  V.  McCauley,  53  Pa.  St. 


209,    21   Am.    Dec.   203;    Grubb   v. 
Grubb,  74  Pa.  St.  25. 

19b.  Chesterfield  v.  Harris 
(1908),  2  Ch.  397;  Hopper  v.  Her- 
ring, 75  N.  J.  L.  212,  67  Atl.  714; 
Pierce  v.  Keator,  70  N.  Y.  419,  26 
Am.   Rep.  612. 

20.  Bailey  v.  Stephens,  12  C. 
B.  N.  S.  91. 

21.  Valentine  v.  Penny,  Noy, 
145;  Hall  v.  Lawrence,  2  R.  I. 
218.  In  Huntington  v.  Asher,  96 
N.  Y.  604,  48  Am.  Rep.  652,  it  was 
held  that  a  right  to  cut  ice  on 
land,  and  to  store  it  in  an  ice 
house  on  other  land,  might  be 
appurtenant  to  the  land  on  which 
the  ice  house  was  situated. 

22.  Drury  v.  Kent,  Cro.  Jac. 
M;  Hall  v.  Lawrence,  2  R.  I.  218, 
57  Am.   Dec.  715;    Baker  v.   Ken- 


1394  Real   Property.  [§§  383,  384 

§  383.  Righis  of  common.  The  term  ''common"  is 
frequently  applied  in  England,  especially  by  the  older 
writers,  to  a  right  of  profit,  as  when  they  speak  of 
common  of  pasture,  of  estovers,  of  turbary,  of  piscary 
(fishing),  or  of  digging  for  coals,  minerals,  and  the 
like.^^  The  word  "common,"  applied  in  this  connec- 
tion, refers  to  the  fact  that  the  interest  in  the  profits 
is  ''common,"  as  between  the  person  entitled  to  take 
profits  and  either  the  owner  of  the  land,  or  other  owners 
of  like  rights  of  profit  in  the  same  land.^^  Con- 
sequently, the  word  is  properly  applied  to  any  profit 
a  prendre  which  is  not  exclusive  of  like  rights  in 
either  the  owner  of  the  land  or  in  a  third  person. 
A  right  of  profit,  on  the  other  hand,  which  is  ex- 
clusive of  any  rights  in  either  the  landowner  or  in  a 
third  person  to  take  similar  profits  from  that  particular 
land,  is  usually  referred  to  in  the  English  books  as  a 
"several"  right,  as  in  the  case  of  a  several  right  of 
fishery  or  of  pasture.^^ 

Common  of  turbary  involves  the  right  in  common 
with  others,  of  digging  turf  on  another's  land,  and 
common  of  piscary  the  right  of  fishing  on  the  land  of 
another,  or,  rather,  in  water  on  his  land.^^  Common 
of  estovers  involves  the  right  of  taking  necessary  wood 
from  another's  land  for  use  as  firewood,  or  in  repairs 
on  a  house  or  farm.^^ 

§  384.  Rights  of  pasture.  The  most  imjDortant 
profit  a  prendre,  historically  considered,  is  that  of  pas- 
turing cattle  on  another's  land,  usually  referred  to  as 
"common   of  pasture."  Under  the  feudal  system,   the 

ney,    145    Iowa,   638,    139   Am.  St.  Leake,  Prop,  in  Land,  332. 

Kep.  456,  124  N.  W.  90L  25.     Co.    Litt.    122a;    Williams, 

23.  Co.    Litt.    122a;    2    Blackst.  Rights  of  Common,  12,  18-30,  259- 
Comm.    32,   34;    Williams,    Rights  '^^^65. 

of  Common,  passim.  26.    Co.  Litt.  122a;  2  Bl.  Comm. 

24.  Co.  Litt.  122a;  2  Pollock  &      34;  Smith  v.  Kemp.  2  Salk.  637. 
Maitland,    Hist.    Eng.    Law,    144;  27.     2  Bl.  Comm.  35;  Van  Rens- 


§  384] 


Profits  a  Peendke. 


1395 


right  existed  in  favor  of  the  tenants  of  the  manor  as  re- 
gards the  waste  land  of  the  manor, — that  is,  the  land 
not  allotted  to  tenants  or  reserved  by  the  lord  as  de- 
mesne land.^^ 

Common  of  pasture  involves  the  placing  of  the 
cattle  on  the  land  to  eat  the  herbage,  in  this  differing 
from  a  right  to  take  herbage  from  another's  land  by 
cutting  and  transporting  it.-^ 

Common  of  pasture  might,  at  common  law,  be  '^  ap- 
pendant," ' 'appurtenant,"  "in  gross,"  or  "because  of 
vicinage."  Common  appendant  existed,  as  before  sug- 
gested, in  favor  of  each  holder  of  arable  land  in  a 
manor,  as  appertaining  to  such  land,  and  involved  the 
right  to  pasture,  on  the  waste  land  of  the  manor,  his 
'' commonable"  cattle.  It  could  not  be  created  after  the 
statute  of  Quia  Eyiiptores,  since  a  grant  by  the  lord  of 
the  manor  thereafter  took  the  land  granted  out  of  the 
manor  as  regards  tenure,"^'^  and  cannot,  of  course,  exist 


selaer  v.  Radcliff,  10  Wend.  (N. 
Y.)  639.  The  right  to  take 
fstovers  from  another's  land  must 
be  distinguished  from  the  exclu- 
sive right  of  a  tenant  for  life 
or  years  to  take  them  from  his 
own  land,  which  has  been  pre- 
viously considered.  See,  onle,  § 
283,  and  2  Blackst.  Comm.  35, 
Chitty's  note. 

28.  This  right  in  the  tenants 
of  the  manor  to  take  profits 
from  the  waste  land  probably  ex- 
isted, before  the  introduction  of 
feudalism  into  England,  as  a 
right  in  the  inhabitants  of  the 
town  or  "vill"  to  utilize  the  lands 
v.hich  belonged  to  the  community 
i:s  a  whole.  After  the  introduc- 
tion of  feudalism  and  of  the  man- 
orial idea,  these  community  lands 
came  to  be  regarded  as  bslonging 
to  the  lord,  and  consequently  the 
right    to    take    profits    therefrom 


was  regarded  as  a  right  to  profits 
a  prendre  in  another's  land.  The 
community  lands  of  the  town  or 
vill  were  themselves  a  survival 
of  the  "mark"  system,  which  ex- 
isted in  all  Aryan  communities. 
Digby,  Hist.  Real  Prop.  (5th  Ed.) 
192;  Williams,  Rights  of  Com- 
mon, 37  et  seq.:  INIaine,  Village 
Communities,  passim;  4  Kent, 
Comm.  441,  note  by  Hon.  0.  W. 
Holmes.  In  this  country,  traces 
of  the  mark  system  are  to  be 
found  in  the  system  of  "com- 
mons" or  "common  lands"  which 
existed  in  New  Englanfl  and  also 
in  the  Spanish  and  French  settle- 
ments.    See  post,  §  418. 

29.  De  la  Warr  v.  Miles,  17 
Ch.  Div.  535;  Potter  v.  North,  1 
Saund.  353a,  note;  Williams, 
Rights  of  Common,  21. 

30.  Leake,  Piop.  in  Land,  337, 
citing  2  Co.  Inst.  85. 


1396  Real  Peopeety.  [§  385 

in  this  country.  Common  "because  of  vicinage"  was 
a  local  custom  of  intercommoning, —  that  is,  for  cattle 
to  stray  from  one  common  to  another  adjacent  com- 
mon, without  creating  any  liability  for  trespass.''^  It 
was  based  on  custom,  and  has  never  existed  in  this 
country."^^  Common  of  pasture  "appurtenant"  and 
"in  gross"  are  rights  of  pasture  annexed  to  a  dominant 
tenement,  or  belonging  to  a  person  and  his  heirs,  the 
terms  being  applied  as  in  other  cases  of  profits  a 
prendre,^^  and  these  may  exist  in  this  country. 

§  385.  Mineral  rights.  A  person  may  have  a  right 
to  take  minerals  from  another's  land  in  the  nature  of  a 
profit  a  prendre?"^  Such  right  to  take  minerals  from 
another's  land  must  be  carefully  distinguished  from 
an  estate  in  the  minerals  themselves  which,  as  pre- 
viously stated,  may  be  separated,  for  purposes  of 
ownership,  from  the  surface  of  the  ground.^^  A  grant 
of  the  right  to  take  minerals  from  another's  land  is  not 

31.     Co.    Litt.   122a;    2    Blackst.  Comm.  33. 

Comm.  33.  34.     Doe  d.  Hanley  v.  Wood,  2 

S2.  A  right  of  common,  some-  Barn.  &  Aid.  738;  Muskett  v.  HiU, 
times,  perhaps,  termed  "common  5  Bing.  N.  C.  694;  Rutland  Marble 
of  vicinage,"  has  been  occasional-  Co.  v.  Ripley,  10  Wall.  (U.  S.) 
ly  asserted  in  jurisdictions  where  339,  19  L.  Ed.  955;  Smith  v. 
the  owner  of  cattle  is  not  bound  Cooley,  65  Cal.  46,  2  Pac.  880; 
to  prevent  them  from  trespassing  Baker  v.  Hart,  123  N.  Y.  470,  12 
on  unfenced  land  belonging  to  L.  R.  A.  60,  25  N.  E.  948;  Clem- 
others  (see  Davis  v.  Gurley,  44  ent  v.  Youngman,  40  Pa.  St. 
Ga.  582),  but  the  right  to  allow  'iAl;  Chartiers  Block  Coal  Co.  v. 
one's  cattle  to  roam  over  un-  Mellon,  152  Pa.  St.  286,  18  L.  R. 
fenced  lands  belongs,  in  those  A.  702,  34  Am.  St.  Rep.  645,  25 
jurisdictions,    to    everybody,    and,  Atl.  597. 

as  clearly  decided,  constitutes  in  35.     Wilkinson     v.     Proud,     11 

no   sense  a   right   of   common   of  Mees.  &  W^.  33;   Caldwell  v.  Ful- 

pasture    (Harrell   v.   Hannum,   50  ton,    31    Pa.    St.    475;     Baker    v. 

Ga.  508).     See  Smith  v.  Floyd,  18  Hart,  123  N.  Y.  470,  12  L.  R.  A. 

Barb.     (N.    Y.)     522;     Thomas    v.  60,  25  N.  E.  948;   Smith  v.  Cooley. 

Marshfield,  13   Pick.    (Mass.)    240.  65  Cal.  46,  2  Pac.  880.    See  ante,  § 

33.     Co.   Litt.    122a;    2    Blackst.  253. 


§  386]  Pkofits  a  Pkendee.  1397 

exclusive  of  the  right  of  the  owner  of  the  land  also  to 
take  them,  unless  it  is  so  expressed.""  A  right  to  take 
oil  or  gas  from  land  in  which  the  person  so  entitled  has 
no  right  of  ownership  is  likewise,  though  not  always 
expressly  so  stated,  a  right  of  profit  a  prendre.^'^  Fre- 
quently what  is  properly  a  profit  a  prendre  as  regards 
minerals  in  land,  that  is,  a  power  of  a  more  or  less 
permanent  character  to  take  as  one's  own  minerals  in 
the  land,  is  referred  to  as  a  mining  license,"^  the  im- 
portant distinction,  before  referred  to,  between  a  profit 
a  prendre  and  a  license,^''  being  thus  ignored. 

§  386.  The  creation  of  rights.  A  profit  a  prendre 
may,  like  an  easement,  be  acquired  by  either  grant  or 
prescription.  Since  the  grant  of  such  a  right  involves 
a  transfer  of  an  interest  in  land,  it  must  be  created  by 
writing,  and  a  seal  is  necessary  to  the  validity  of  the 
grant  at  common  law.^°  An  attempted  grant  of  a 
profit  a  prendre,  if  invalid  as  being  merely  oral,  or,  it 
would  seem,  as  wanting  a  seal,  creates  a  license  merely, 
which  may  be  revoked  at  any  time,^^  but  by  reason  of 

36.  Stockbrldge  Iron  Co.  v.  57  Pa.  St.  446;  Boone  v.  Stover, 
Hudson  Iron  Co.,  107  Mass.  290;  06  Mo.  430;  Silsby  v.  Trotter,  29 
Massot  V.  Moses,  3  Rich.  (S.  C.)  N.  J.  Eq.  228;  East  Jersey  Iron 
168;  Harlow  v.  Lake  Superior  Co.  v.  Wright,  32  N.  J.  Eq.  248; 
Iron  Co.,  36  Mich.  105;  Silsby  v.  Painbridge,  Mines  (5th  Ed.)  280 
Trotter,  29  N.  J.  Eq.  228;  Grubb  t'^  seq.;  MacSwinney,  Mines,  c.  12. 
V.  Bayard,  2  Wall.  Jr.  81,  Fed.  and  authorities  cited,  onte,  §  254. 
Cas.  No.  5,849;  Funk  v.  Halde-  39.  Ante,  §  381,  notes  14-16. 
man,  53  Pa.  St.  229;  Mountjoy's  40.  Hopkins  v.  Robinson,  2 
Case,  Co.  Litt.  164b.  Lev.    2;    Somerset    v.    Fogwell,    5 

37.  See  Brown  v.  Spilman,  155  Barn.  &  C.  875;  Holford  v.  Bailey, 
U.  S.  665,  39  L.  Ed.  304;  Union  13  Q.  B.  426;  Taylor  v.  Millard, 
Petroleum  Co.  v.  Bliven  Petro-  118  N.  Y.  244,  6  L.  R.  A.  667.  23 
Icum  Co.,  72  Pa.  St.  173;  Duffield  N.  E.  367;  Karaphou&e  \.  Gaffner, 
V.  Rosenzweig,  144  Pa.  St.  520,  2;:  73  111.  453;  Boone  v.  Stover,  66 
Atl.  4.  Mo.  430;  McBee  v.  Loftis,  1  Strob. 

38.  See    Stockbridge    Iron    Co.  Eq.   (S.  C.)   90. 

V.    Hudson    Iron    Co.,    107    Mass.  41.     Williams    v.    Morrison     (C. 

290,  322;  Kamphouse  v.  Gaffner,  C.)  32  Fed.  177;  Wheeler  v.  West, 
73  111.  453;  Neumoyer  v.  Andreas,      71  Cal.   126,   11  Pac.  871;    Kamp- 


1398  Real  Property.  [§  387 

tlie  making  of  improvements  by  the  intended  grantee  on 
the  faith  thereof  the  intending  grantor  may  be  estop- 
ped to  deny  the  validity  of  the  grant,^-  as  in  the  case 
of  an  invalid  grant  of  an  easement.'^^ 

A  profit  a  prendre  may  also,  like  an  easement,  be 
created  by  words  of  exception   or  reservation,^^*^ 

A  right  of  profit  may  be  acquired  by  prescription, 
provided  the  taking  during  the  prescriptive  period  was 
limited  to  the  requirements  of  a  particular  dominant 
tenement.^^  But  there  can  be  no  prescriptive  right  of 
profit  in  the  public."*^ 

§  387.  AppofTtionment  and  extinction.  A  profit 
a  prendre  in  gross  cannot  be  assigned  in  portions  to 
different  persons,  so  that  each  of  the  assignees  may 
exercise  it  separately,  but  all  the  assignees  must  exer- 
cise it  in  common;  this  being  on  the  theory  that  other- 
wise the  land  would  b«  injured  as  a  result  of  the  taking 
of  profits  therefrom  by  numerous  persons.^®  Some 
rights  of  common  appurtenant,  such  as  those  of  esto- 
vers, are  not  apportionable  on  the  severance  of  the 
dominant  tenement  by  the  conveyance  of  a  part  thereof, 
since  this  would  increase  the  amount  of  profits  to  be 

house  V.  Gaffner,  73  IH.  453;  Des-  P.    Co.,   207    N.    Y.    34,   100    N.   E. 

lege  V.  Pearce,  38  Md.  588;    Huff  434;      Tuscorara     Club     of     Mil- 

V.  McCauley,  53  Pa.  St.  206.  brook   v.    Brown,    215    N.    Y.    543, 

42.  Kamphouse   v.    Gaffner,    73  109  N.  E.  597. 

III.  453;  Huff  v.  McCauley,  53  Pa.  44.     Dowglas    v.    Kendall,    Cro. 

St.  206.  Jac.    256;     Cowlan    v.    Slack,    15 

43.  Ante,    §    349(d),    notes    44-  East,   108;    Ackroyd  v.   Smith,    10 
49.  C.  B.  164;   Bailey  v.  Stephens,  12 

43a.  Stockbridge  Iron  Co.  v.  C.  B.  N.  S.  91;  Harris  v.  Chester- 
Hudson  Iron  Co.,  107  Mass.  290;  field  (1911),  App.  Cas.  623;  Hill 
Warden  v.  Watson,  93  Md.  107,  5  v.  Lord,  48  Me.  83;  Morse  v.  Mar- 
S.  W.  605;  Alden's  Appeal,  93  Pa.  shall,  97  Mass.  519;  Perley  v. 
St.  182;  Pierce  v.  Keator,  70  N.  Langley,  7  N.  H.  233. 
Y.   419.  45.     Post,  §  419. 

That    a    reservation    is    ineffec-  46.     Mountjoy's    Case,    Co.    Lift, 

tual  to  create  a  proiit  a  prendre  164b;    Chetham  v.   Williamson,   4 

in   favor   of   a  third   person,    see  East,  469;  Funk  v.  Haldeman,  53 

Beardslee    v.    New    Berlin,    L.    &  Pa.  St.  229,  244;  Harlow  v.  Lake 


§  387]  Profits  a  Peendee.  1399 

taken,  and,  consequently,  as  neither  of  the  persons 
between  whom  the  land  is  divided  is  entitled  to  the 
l-irofits,  the  right  thereto  is  entirely  extinguished  by 
such  a  conveyance.*'  But  where  a  right  of  common  is 
admeasurable  according  to  the  area  of  the  dominant 
tenement,  the  common  may  be  apportioned  to  the 
several  parts  of  the  dominant  tenement  upon  its 
severance,  the  burden  on  the  servient  tenement  not 
being  increased  thereby.  Such  is  the  case  where 
there  is  a  right  to  pasture  such  cattle  as  may  be 
kept  on  the  dominant  tenement,  or  to  take  such  herb- 
age as  may  be  used  thereon,  and  the  alienee  of  a 
part  of  the  dominant  tenement  is  entitled  to  a  right  of 
common  proportioned  to  the  extent  of  his  grant.^^ 

A  profit  a  prendre  is  extinguished  by  a  release 
thereof  to  the  owner  of  the  servient  tenement.*^  If  the 
titles  to  the  dominant  and  servient  tenements  become 
united  in  one  person,  he  having  an  equal  estate  in  both, 
the  right  of  common  or  profit  is  extinguished,  since  a 
man  cannot  have  a  right  of  profit  in  his  o^vn  land.^*^ 
And  the  same  result  no  doubt  follows  if  the  owner  of 
a  right  of  profit  in  gross  acquires  a  fee-simple  estate 
in  the  servient  tenement. 

Even  though  a  right  of  profit  or  common  is  appor- 
tionable,  if  separate  parts  of  the  land  subject  thereto 
are  held  by  different  tenants,  the  right  is  extinguished 
in  case  the  owner  of  the  dominant  tenement  releases  a 

Superior  Iron  Co.,  36   Mich.   105,  rence,   2   R.   I.    218,   57  Am.   Dec. 

121.  715;    Van   Rensselaer   v.  Radcliff, 

47-.     Van     Rensselaer     v.     Rad-  10   Wend.    (N.  Y.)    639. 

cliffe,   10   Wend.    (N.   Y.)    639,    2r)  49.     Litt.  §  480;  Co.  Litt.  280a; 

Am.     Dec.     582;      Livingston     v.  2  Leake,  355. 

Ketchum,    1    Barb.    (N.    Y.)    592;  50.     Tyrringham's  Case,  4  Coke, 

Hall  V.  Lawrence,  2  R.  I.  218,  57  38a;  Bradshaw  v.  Eyre,  Cro.  Eliz. 

Am.   Dec.  715;    Bell  v.  Ohio  &  P.  570;    Rex  v.  Inhabitants  of  Her- 

R.    Co.,    25    Pa.    St.    161,    64    Am.  mitage,    Carth.   239;    Saundeys   v. 

Dec.    687.  Oliff,   Moore,   467;    Hall   v.   Law- 

48.     Co.     Litt.     122a;     Tyrring-  rence,    2   R.   I.   218,   57   Am.   Dec. 

ham's    Cas,    4    Coke,    37a;    Wild's  715. 
Case,  8  Coke,  78b;   Hall  v.  Law- 


1400 


Real.  Property. 


[§  387 


])art  of  such  land  from  the  burden  of  the  profit,^^  or  if 
the  dominant  tenement  and  a  part  of  the  servient  land 
become  the  property  of  one  man;''-  since,  otherwise,  the 
burden  upon  the  other  parts  would  be  increased. 


51.     Rotherham   v.    Green,   Cro.       I.eon.     43;      Livingston     v.     Te* 


Eliz.  593;  Hall  v.  Lawrence,  2 
R.  L  218,  57  Am.  Dec.  715;  John- 
son V.  Barnes,  L.  R.  7  C.  P.  592, 
600. 

52.     Kimpton    v.    Bellamyes,    1 


Broeck,  16  Johns.  (N.  Y.)  14,  8 
Am.  Dec.  287;  Hall  v.  Lawrence, 
2  R.  I.  218,  57  Am.  Dec.  715;  BeU 
V.  Ohio  &  P.  R.  Co.,  25  Pa.  St. 
161,  64  Am.  Dec.  687. 


CHAPTER  XIV. 

COVENANTS  RUNNING  WITH  THE  LAND. 

§  388.  General  considerations. 

389.  Tlie  running  of  benefits. 

390.  The  runnings  of  burdens. 

391.  Privity  of  estate. 

392.  The  nature  of  the  covenant. 

393.  Party  wall  agreements. 

§  388.  General  considerations.  Covenants  with 
the  owner  of  hind,  which  are  calculated  to  render  its 
enjoyment  more  beneficial,  may  in  some,  if  not  all, 
cases,  be  enforced  by  a  subsequent  owner  of  the  land; 
and,  on  the  other  hand,  covenants  made  by  the  o^^^ler 
of  land,  restricting  in  some  mode  the  freedom  of  its 
enjoyment,  may,  by  some  authorities,  be  enforced  against 
a  subsequent  owner  of  the  land.  Covenants  the  benefit 
or  burden  of  which  may  thus  pass  to  subsequent  own- 
ers of  the  land  are  said  to  "run  with  the  land." 
Rights  created  by  such  covenants  in  favor  of  or  against 
transferees  of  the  land  are  strictly  in  personam,  and 
not  in  rem;  but  as  incidents  of  the  land,  following  it 
into  the  hands  of  subsequent  owners,  they  are  some- 
what similar  in  effect  to  proprietary  rights  in  another's 
land  such  as  have  been  previously  discussed,  and  ac- 
cordingly call  for  consideration  in  this  connection. 

That  covenants  in  connection  with  leases  run  in 
favor  of  or  against  the  owner  of  an  estate  for  life  or 
for  years  created  by  the  lease,  or  of  the  reversion 
expectant  on  such  estate,  is  determined,  or  at  least 
confirmed,  by  the  provisions  of  the  statute  of  32 
Hen,  VIII.  *c.  34.  The  terms  and  effect  of  this  statute 
having  been  already  cons^^dered,'  the  running  of  cove- 
nants made  by  or  with  the  owner  of  land  in  fee  simple 
not  in  connection  with  a  lease,  will  alone  be  here  dis- 
cussed. 

(1401) 


1402  Eeal  Peopeety.  [§  388 

These  questions  of  the  assignment  of  contractual 
benefits  and  liabilities  by  the  transfer  of  the  land  in  con- 
nection with  which  the  contract  was  made  have  usually 
been  considered  in  connection  with  "covenants,"  strict- 
ly so  called,  that  is,  contracts  under  seal.  In  England, 
owing  to  the  general  practice  of  sealing  formal  legal  in- 
struments affecting  land,  the  question  of  the  running  of 
a  contract  not  under  seal  appears  not  to  have  been  the 
subject  of  judicial  determination,  so  far  as  appears ;  and 
the  fact  that  the  running  of  covenants  in  leases  was, 
by  the  statute  of  32  Hen.  8,  expressly  confined  to 
covenants  in  indentures  of  lease  may  well  have  tended 
to  confirm  the  view  that  in  no  case  can  an  agreement 
not  under  seal  run  with  the  land.  In  this  country 
there  are  one  or  two  decisions  that  a  contract  not 
under  seal  will  not  run  with  the  land-  and  at  least  one 
case  indicative  of  a  contrary  view.^  In  any  state 
in  which  private  seals  have  been  abolished  or  their 
efficacy  destroyed,  the  fact  that  a  contract  is  or  is 
not  under  seal  is  obviously  immaterial  upon  the  ques- 
tion whether  it  runs  with  the  land. 

In  the  case  of  a  deed  poll,— that  is,  an  instrument 
sealed  by  one  only  of  the  parties  thereto, — a  stipula- 
tion therein  on  the  part  of  the  person  not  sealing  it 
is,  by  the  weight  of  authoritj^  regarded  as  the  covenant 
of  such  person  by  reason  of  his  acceptance  of  the 
conveyance,*  though  there  are  well-considered  opinions 

1.  Ante,  §    56(a).  114  N.  E.  692. 

2.  Martin  v.  Drinaii,  128  Mass.  4.  Co.  Litt.  230b,  Butler's 
515;  Kennedy  v.  Owen,  136  Mass.  note;  Sheppard's  Touchstone, 
199;  Poage  v.  Wabash,  St.  L.  &  177;  Georgia  Southern  R.  Co.  v. 
P.  Ry.  Co.,  24  Mo.  App.  199.  Reeves,  64  Ga.  492;  Sanitary  Dis- 

3.  Burbank  v.  Pillsbury,  4S  N.  trict  of  Chicago  v.  Chicago  Title 
H.  475.  That  an  oral  contract  &  Trust  Co.,  278  111.  529,  116  N. 
will  not  run,  see  St.  Louis,  A.  &  E.  161;  Midland  Ry.  Co.  v.  Fisher, 
T.  H.  R.  Co.,  V.  Todd,  36  111.  409;  125  Ind.  19,  8  L.  R.  A.  694,  21  Am. 
Guilfoos  V.  N.  Y.  Cent.  R.  Co.,  69  St.  Rep.  189,  24  N.  E.  758;  Sex- 
Hun  (N.  Y.)  593,  23  N.  Y.  Supp.  auer  v.  Wilson,  136  Iowa,  357,  14 
925;  Bartlett  v.  State,  —  Ind.  — ,  L.  R.  A.   (N.  S.)    185,  15  A.  &  E. 


§  389] 


Covenants  Running  With  Land. 


1403 


to  the  contrary.^  In  order  to  create  a  covenant,  neither 
the  word  "covenant,"  nor  any  other  particular  word, 
is  necessary,^  and  words  of  condition  are  frequently, 
as  before  stated,  construed  as  words  of  covenant/ 
Moreover,  words  of  covenant  have  been  sometimes 
construed  as  creating,  not  a  covenant,  but  an  ease- 
ment,^ or  a  charge  on  the  land  in  the  nature  of  a 
lien.9 

§  389.  The  running  of  benefits.  That  the  right  to 
sue  upon  a  covenant  relating  to  land  may  pass  to  a 
subsequent  owner  of  the  land,  claiming  under  the 
covenantee,  by  reason  merely  of  the  conveyance  of  the 
land,  is  generally  conceded.^*'    Such  a  covenant  is  usually 


Ann.  Cas.  54,  113  N.  W.  941;  Ken- 
tucky Cent.  R.  Co.  v.  Kenney,  82 
Ky.  154  (semble)  ■  Poage  v.  Wa- 
bash, St.  L.  &  P.  Ry.  Co.,  24  Mo. 
App.  199;  Burbank  v.  Pillsbury, 
48  N.  H.  475,  97  Am.  Dec.  633; 
Finley  v.  Simpson,  22  N.  J.  L. 
311,  53  Am.  Dec.  252;  Hagerty 
V.  Lee,  54  N.  J.  L.  580,  20  L.  R.  A. 
C31,  25  Atl.  319;  Atlantic  Dock 
Co.  V.  Leavitt,  54  N.  Y.  35,  13 
Am.  Rep.  556;  Bowen  v.  Beck,  94 
N.  Y.  86,  46  Am.  Rep.  124;  May- 
nairl  v.  Moore,  76  N.  C.  158  {sem- 
ble) ;  Riug  V.  Mayberry,  168  N. 
C.  563,  84  S.  E.  846;  Hickey  v. 
Lake  Shore  &  M.  S.  Ry.  Co.,  51 
Ohio  St.  40,  23  L.  R.  A.  396,  46 
Am.  St.  Rep.  543,  36  N.  E.  72; 
Doty  V.  Chattanooga  Union  Ry. 
Co,  103  Tenn.  564,  53  S.  W.  944, 
48  L.  R.  A.  160,  6  L.  R.  A.  (X.  S.) 
436. 

5.     Piatt,  Covenants,  10;    Hins 
dale  V.  Humphrey,  15  Conn.  431; 
Stabler  v.   Cowman,   7   Gill   &   J. 
(Md.)    284;    Western    Md.   R.    Co. 
V.  Orendirff,  37  Md.  335;    Newell 


V.  Hill,  2  Mete.  (Mass.)  180; 
Martin  v.  Drinan,  128  Mass.  515; 
Kennady  v.  Owen,  136  Mass.  199; 
Maule  V.  Weaver.  7  Pa.  St.  329; 
First  Congregational  Meeting 
House  Soc.  V.  Town  of  Rochestei , 
66  Vt.   501,  29  Atl.   810. 

6.  Piatt,  Covenants.  28;  Har- 
tung  V.  Witte,  59  Wis.  285,  18  N. 
W.  175;  Midgett  v.  Brooks,  34  N. 
C.  145,  55  Am.  Dec.  405;  Taylor 
V.  Preston.  79  Pa.  St.  436;  Trull 
v.  Eastman,  3  Mete.  (Mass.)  121; 
Electric  City  Land  &  Improve- 
ment Co.  V.  West  Ridge  Coal  Co., 
187   Pa.  St.   500,  41  Atl.   458. 

7.  Ante,  §  79. 

8.  Ante,  §  361. 

9.  Fresno  Canal  &  Irrigation 
Co.  V.  Rowell,  80  Cal.  114,  13  Am. 
St.  Rep.  112,  22  Pac.  53;  Howard 
Mfg.  Co.  V.  Water  Lot  Co.,  53  Ga. 
689;  Martin  v.  Martin.  44  Kan. 
iP5,  24  Pac.  418;  Goudy  v.  Goudy, 
Wright   (Ohio),  410. 

10.  Pollock,  Contracts  (Willis- 
ton's  Ed.),  300;  Sims,  Covenants 
Running  with   Land,   136;    Fergu- 


1404 


Real  Property. 


[^  389 


made  by  the  grantor  or  grantee  of  land  as  an  incident 
of  the  conveyance,  that  is,  by  one  who  has  some 
relation  to  the  title.  The  question  has,  however, 
occasionally  arisen  whether  one  who  is  neither  a 
grantor  nor  grantee  of  the  land  may  make  a  covenant 
with  the  owner  thereof,  the  benefit  of  which  will  pass 
to  a  subsequent  owner  of  the  land,  that  is,  whether 
the  benefit  of  a  covenant  may  run,  though  there  is 
lacking  what  is  ordinarily  referred  to  as  *' privity  of 
estate"  between  the  covenantor  and  covenantee.  The 
authorities  are  about  equally  divided  upon  the  ques- 
tion.^^  Apart,  however,  from  any  question  of  cove- 
nants running  wdth  the  land,  the  transfer  of  the  land 
might  be  construed  as  intended  to  pass  the  right  of 
action   for   subsequent  breaches   of   the   covenant,   that 


son  V.  Omaha  &  S.  W.  R.  Co.,  227 
Fed.  513,  142  C.  C.  A.  145;  St. 
Louis,  I.  M.  &  S.  Ry.  Co.  v. 
O'Baugh,  49  Ark.  418,  5  S.  W. 
711;  Sterling  Hydraulic  Co.  v. 
Williams,  66  111.  393;  Peden  v. 
Chicago,  R.  I.  &  P.  Ry.  Co.,  73 
Iowa,  328,  5  Am.  St.  Rep.  680,  35 
N.  W.  424;  Gaines'  Adm'x  v.  Poor, 
3  Mete.  (Ky.)  503,  79  Am.  Dec. 
559;  Leader  v.  La  Flamme,  111 
Me.  242,  88  Atl.  859;  Maryland 
Coal  Co.  V.  Cumberland  &  Penn- 
sylvania R.  Co.,  41  Md.  343;  Na- 
tional Union  Bank  at  Dover  v. 
Segur,  39  N.  J.  L.  173;  Vjntnor 
Investment  Co.  v.  Record  Devel. 
Co.  (N.  J.  Ch.),  80  Atl.  952;  Raby 
V.  Reeves,  112  N.  C.  688,  16  S. 
E.  760;  Ford  v.  Oregon  Electric 
R.  Co.,  60  Ore.  278,  36  L.  R.  A. 
(N.  S.)  358,  Ann.  Cas.  1914A,  280, 
117  Pac.  809. 

11.     That  the  benefit  will  pass 
with  the  land  in   such   case,   see 


Pollock,  Contracts  (7th  Ed.)  237, 
note;  Holmes,  The  Common  Law, 
405;  1  Smith's  Leading  Cases  (8th 
u\m.  Ed.)  at  p.  176;  Shaber  v.  St. 
Paul  Water  Co.,  30  Minn.  179,  14 
N.  W.  874;  Dickinson  v.  Hoomes' 
Adm'r,  8  Grat.  (Va.)  353  (dic- 
tum) ;  Gaines'  Adm'x  v.  Poor,  3 
Mete.  (Ky.)  503,  79  Am.  Dec.  559; 
Rawle,  Covenants,  §  203,  note. 
The  contrary  view  is  taken  in 
Sims,  Covenants  Running  with 
the  Land,  196;  Sugden,  Vendors 
(14th  Ed.)  584  et  seq,;  Mygatt  v. 
Coe,  124  N  .Y.  212,  11  L.  R.  A. 
646,  26  N.  E.  611,  147  N.  Y.  456, 
42  N.  E.  17;  Lyon  v.  Parker,  45 
Me.  474;  Hurd  v.  Curtis,  19 
Pick.  (Mass.)  459  {dictum)  Pack- 
enham's  Case,  Y.  B.  42  Edw.  Hi. 
3,  pi.  14  (translated  in  Rawle, 
Covenants,  §  203,  note),  is  cited 
on  both  sides  of  the  discussion, — 
a  not  unnatural  result  of  the  ob- 
scurity of  the  report. 


§  390] 


Covenants  Running  With  Land. 


1405 


is,   as   involving  an   assignment   of   a   cliose   in   action, 
within  the  modern  statutes  and  rules  in  that  regard.^^"^ 

§  390,  The  running  of  burdens.  In  England  it  is 
apparently  the  law  that  the  burden  of  a  covenant  by 
the  owner  of  land  in  fee  simple,  made  with  one  other 
than  his  lessee,  will  not  run  so  as  to  be  enforceable 
against  a  transferee  of  the  land.^^  In  this  country, 
on  the  other  hand,  there  are  a  number  of  decisions 
to  the  effect  that  covenants  by  the  owner  of  land 
will  bind  transferees   of  the   land,^-^   though  in   a   few 


lla.  See  1  Tiffany,  Landlord  & 
Ten.  p.  885.  That  transfer  of 
the  land  after  breach  does  not 
transfer  the  right  of  action  for 
such  breach,  see  Gulf  Coast  & 
Coke  Co.  V.  Musgrove,  195  Ala. 
219,  70  So.  179. 

12.  Pollock,  Contracts  (7th 
Ed.)  237;  1  Smith,  Lead.  Cas. 
(10th  Ed.)  75-85.  See  Brewster 
V.  KidgUl,  12  Mod.  166;  Brew- 
.ster  V.  Kitchin,  1  Ld.  Raym.  317; 
Keppel  V.  Bailey,  2  Mylue  &  K. 
517;  Austerberry  v.  Corporation 
of  Oldham,  29  Ch.  Div.  750. 

13.  Robbins  v.  Webo,  68  Ala. 
393;  Gilmer  v.  Mobile,  &  M.  R. 
Co.,  79  Ala.  569;  Alderson  v.  Cut- 
ting, 163  Cal.  503,  126  Pac.  157 
(semble) ;  Hottell  v.  Farmers' 
Protective  Ass'n,  25  Colo.  67,  71 
Am.  St.  Rep.  109,  53  Pac.  327; 
Georgia  Southern  R.  Co.  v.  Reeves, 
64  Ga.  492;  Dorsey  v.  St.  Louis 
A.,  &.T.  H.  R.  Co.,  58  111.  65.; 
Fitch  v.  Johnson,  104  111.  Ill; 
Hazlett  V.  Sinclair,  76  Ind.  488, 
40  Am.  Rep.  254;  Conduitt  v. 
Ross,  102  Ind.  166,  26  N.  E.  198; 
Sexauer  v.  Wilson,  136  Iowa,  357, 
14    L.    R.    A.    (N.    S.)    185,    15    A. 

2  R.  P.— 14 


&  E.  Ann.  Cas.  54,  113  X.  W.  941; 
Ranney  v.  Childs,  96  Kan.  483, 
152  Pac.  621;  Sutton  v.  Head,  86 
Ky.  156,  9  Am.  St.  Rep.  274,  5  S.  W. 
410;  Chesapeake  &  Ohio  Ry.  Co. 
V.  May,  157  Ky.  708,  163  S.  W. 
1112.  De  Logny's  Heirs  v.  Mercer, 
43  La.  Ann.  205  (semble);  Leader 
v.  La  Flamme,  111  Me.  242,  88 
Atl.  859;  Phoenix  Ins.  Co.  v.  Con- 
tinental Ins.  Co.,  87  N.  Y.  400 
(dictum);  Dexter  v.  Beard,  130 
X.  Y.  549,  29  X.  E.  983;  Denman 
V  Prince,  40  Barb.  (N.  Y.)  213; 
Dey  V.  Prentice,  90  Hun  (X.  Y.) 
27,  35  X.  Y.  Supp.  563;  Easter  v. 
Little  Miami  R.  Co.,  14  Ohio  St. 
48  (dictum) ;  Huston  v.  Cincin- 
nati, &  Z.  R.  Co.,  21  Ohio  St. 
236;  Pittsburg,  C.  &  St.  L.  Ry. 
Co.  V.  Bosworth,  46  Ohio  St.  81, 
2  L.  R.  A.  199,  18  X.  E.  533 
(dictum);  Hickey  v.  Lake  Shore, 
&  M.  S.  Ry.  Co.,  51  Ohio  St.  40, 
2.3.  L.  R.  A.  396,  46  Am.  St.  Rep. 
545,  36  N.  E.  672  (dictum)  St. 
Andrews'  Church  Appeals,  67  Pa. 
St.  512;  Landell  v.  Hamilton,  175 
Pa.  St.  327,  34  L.  R  A.  227,  34 
Atl.  663;  Electric  City  Land  &  Im- 
provement Co.  V.  West  Ridge  Coal 


1406 


Real  Property. 


[§  390 


states  the  English  view  appears  to  have  been  adopted/'* 
Occasionally  a  covenant  of  an  affirmative  character 
appears  to  have  been  regarded  as  enforcible  in  equity, 
on  the   same   theoiy  on  which  negative   or   restrictive 


Co.,  187  Pa.  St.  500,  41  Atl.  458; 
Wooliscroft  V.  Norton,  15  Wis. 
198.  Crawford  v.  Witherbee,  77 
Wis.  419,  9  L.  R.  A.  561,  46  N.  W. 
545. 

14.  West  Virginia  Transpor- 
tation Co.  y  Ohio  River  Pipe  Line 
Co.,  22  W.  Va.  600;  Brewer  v. 
MarshaH,  18  N.  J.  Eq.  337,  19 
N.  J.  Eq.  537  (dictum) ;  Tardy 
V.  Creasy,  81  Va.  553,  59  Am.  Rep. 
676;  Costigan  v  Pennsylvania  R. 
Co.,  54  N.  J.  L.  233,  23  Atl.  810; 
Lynn  v.  Mount  Savage  Iron  Co., 
34  Md.   603    (semble). 

It  has  been  said  quite  recently, 
by  the  New  York  Court  of  Ap- 
peals, that  the  burden  of  a  cov- 
enant will  not  ordinarily  run  with 
the  land,  two  or  three  covenants 
being  however  referred  to  as  ex- 
ceptions to  this  rule.  Miller  v. 
Clary,  210  N.  Y.  127,  103  N.  E. 
1115.  Compare  IMorehouse  v. 
Woodruif,  218  N.  Y.  494,  113  N.  E. 
512. 

In  Massachusetts,  apart  from 
the  cases  of  landlord  and  tenant, 
the  burden  of  a  covenant  will  not 
run  with  the  land,  as  a  general 
rule,  it  has  been  said,  unless  "the 
(covenant  either  creates  a  ser- 
vitude or  a  restriction  in  the 
nature  of  a  servitude  in  favor 
of  a  neighboring  parcel,  or  else 
is  in  some  way  incident  to  and 
inseparable  from  such  a  servi- 
tude; or,  if  attached  to  the  dom- 
inant estate,  appears  to  be  the 
quid   pro    quo    for    the   easement 


enjoyed."  Holmes,  S.  J.,  in  Lin- 
coln V.  Burrage,  177  Mass.  378,  52 
L.  R.  A.  110,  59  N.  E.  67;.  Com- 
pare Norcross  v.  James,  140  Mass. 
188,  2  N.  E.  946.  Morse  v.  Aldrich, 
19  Pick.  (Mass.)  449,  and  Bronson 
v.  Coffin,  108  Mass.  175,  118  Mass. 
156,  11  Am.  Rep.  335,  which  seem 
to  favor  the  running  of  the  bur- 
den. The  later  decisions  in  this 
state  upon  this  subject,  especially 
those  in  which  the  opinion  of  the 
court  was  delivered  by  Holmes, 
C.  J.,  are  in  accord  with  the  views 
expounded  by  him  in  his  work 
"The   Common  Law,"  pp.  392-406. 

14.  Gilmer  v.  Mobile,  &  M.  Ry. 
Co.,  79  Ala.  569,  58  Am.  Rep. 
623;  Bartlett  v.  State,  —  Ind. 
— ,  114  N.  E.  692;  Louisville  H. 
&  St.  L.  Rwy  Co.  V.  Baskett,  — 
(Ky.)  — ,  121  3.  W.  957;  Kneale 
V.  Price,  29  Mo.  App.  227;  Bur- 
bank  V.  Pillsbury,  48  N.  H.  475; 
Pittsburg  C,  &  St.  L.  Ry.  Co.  v. 
Bosworth,  46  Ohio  St.  81,  2  L.  R. 
A.  199,  18  N.  E.  533. 

In  Carnegie  Realty  Co.  v.  Caro- 
lina C,  &  0.  Ry.  Co.,  136  Tenn. 
300,  189  S.  W.  371,  it  was  held 
that  a  transfer  did  not  impose 
the  burden  of  the  covenant  on  the 
transferee  if  the  latter  did  not 
make  any  claim  under  the  trans- 
fer and  did  not  take  possession. 
This  does  not  accord  with  the 
view  ordinarily  asserted  in  con- 
nection with  the  running  of  cov- 
enants in  leases.  See  1  Tiffany. 
I^andlord   &   Ten.,   p.    975. 


<^  391]  CovEXANTs  RuxNixG  WiTH  Land.  1407 

covenants  are  so  regarded,  as  against  a  purchaser 
with  notice  of  the  covenant.  ^^'^ 

The  fact  that  the  burden  of  a  covenant  passes 
to  the  transferee  is  not,  it  would  seem,  sufficient  in 
itself  to  relieve  the  original  covenantor  from  liability 
thereon,  the  same  principle  being  applicable  as  in 
the  case  of  landlord  and  tenant.^^  In  several  cases, 
however,  the  covenantor  has  been  regarded  as  immune 
from  liability  for  violations  occurring  after  he  has 
parted  with  title,  on  a  construction  of  the  language 
to  this  effect,  as  being  in  accord  with  the  presumable 
intention  of  the  parties  to  the  covenant.^** 

While  ordinarily  the  cases  do  not  assert  any  re- 
quirement that  the  transferee  of  land  have  notice  of 
a  covenant  made  by  a  previous  o^^^ler,  in  order  that 
he  may  be  bound  thereby,  they  occasionall}'  do  so  ;^*^^ 
and  the  courts,  it  is  conceived,  would  be  reluctant  to 
impose  liability  upon  one  under  a  covenant  of  which  he 
had  neither  actual  or  constructive  notice.  Usually 
the  transferee  of  land  would  be  chargeable  with  notice 
of  the  covenant  by  reason  of  the  fact  that  it  occurs  in 
a  conveyance  in  the  chain  of  title,  or  in  a  conveyance 
of  adjoining  land  made  by  a  previous  owner  whose 
name  appears  in  the  chain  of  title. 

§  391.  Privity  of  estate.  In  order  that  the  burden 
of  a  covenant  run  with  the  land,  there  must  be,  it  is 
generally  stated,  a  "i)rivity  of  estate"  between  the 
covenantor  and  covenantee. ^'^     This  expression,  as  used 

14a.     Post,  §  395,  note  17.  124    N.   Y.    120,    21    Am.    St.    Rep. 

15.  See    cnte,    §    54(d).  652,  26  N.  E.  275;  BoUes  v.  Pecos 

16.  Carr  v.  Lowry's  Adm'x,  27  Irrig.  Co.,  —  N.  Mex.  — ,  167  Pac. 
Pa.  St.  257;  Rickey  v.  Lake  Shore  280. 

&  M.  S.  Ry.  Co.,  51  Ohio  St.  40,  16a.     See    cases    cited    Post,    § 

23  L.  R.  A.  396,  46  Am.  St.  Rep.  393,  note  76. 

545,  36  N.  E.  672;  Sexauer  v.  Wil-  17.     Spence  v.  Mobile,  &  M.  Ry. 

son,   136    Iowa,    357,    14    L.   R.   A.  Co.,  79  Ala.   576;    Hiazlett  v.   Sin- 

(N.  S.)   185,  15  A.  &  E.  Ann.  Cas.  clair,    76    Ind.    488,    40    Am.    Rep. 

54,  113  N.  W.  941;  Clark  v.  Devoe,  254;  Lyon  v.  Parker,  45  Me.  474; 


1408 


Real  Peoperty. 


H  391 


in  connection  with  covenants,  other  than  in  leases, 
running  with  estates  in  fee  simple,  refers  apparently 
to  the  relation  between  the  grantor  and  grantee  of  such 
an  estate  at  the  time  of  the  conveyance.  In  other 
words,  in  order  that  there  be  such  privity  of  estate  that 
the  burden  of  a  covenant  may  run,  the  covenant  must 
be  entered  into  at  the  time  of  the  making  of  a  con- 
veyance by  the  covenantee  to  the  covenantor,  or  vice 
versa^^  Accordingly,  except  perhaps  in  two  or  three 
states,^^  the  requisite  privity  exists  in  the  case  of  a 
covenant  by  a  grantor  to  do  or  not  to  do  something  on 
land  retained  by  him,  adjoining  that  conveyed,  so  that 
one  to  whom  the  former  is  subsequently  conveyed  by 
him  may  be  bound  by  the  covenant;-^  and  it  also  exists 


Hurd  V.  Curtis,  19  Pick.  (Mass.) 
459;  Morse  v.  Aldrich,  19  Pick. 
(Mass.)  449;  Bronson  v.  Coffin, 
108  Mass.  175,  118  Mass.  156,  11 
Am.  Rep.  254;  Sharp  v.  Cheatham, 
88  Mo.  498;  Wheeler  v  Schad,  7 
Nev.  204;  Cole  v.  Hughes,  54  N. 
Y.  444;  Nye  v.  Hoyle,  120  N.  Y. 
195,  24  N.  E.  1;  Easter  v.  Little 
Miami  R.  Co.,  14  Ohio  St.  48. 
Town  of  Middletown  v.  Newport 
Hospital,  16  R.  I.  319,  15  Atl. 
800;  Hurxthal  v.  St.  Lawrence 
etc.,  Co.,  53  W.  Va.  87,  97  Am.  St. 
Rep.  954,  44  S.  E.  520. 

18.  Gilmer  v.  .Mobile,  &  M.  R. 
Co.,  79  Ala.  569;  Fresno  Canal  & 
Irrigation  Co.  v.  Rowell,  80  Cal. 
114,  13  Am.  St.  Rep.  112,  22  Pac. 
53;  Conduitt  v.  Ross,  102  Ind. 
166,  26  N.  E.  198;  Indianapolis 
Water  Co.  v.  Nulte,  126  Ind.  373, 
26  N.  E.  72;  Louisville,  H.  &  St. 
L.  Ry.  Co.  V.  Baskett,  —  Ky.  — . 
121  S.  W.  957;  Smith  v.  Kelley,  56 
Me.  64;  Burbank  v.  Pillsbury,  48 
N.  H.  475;  Harsha  v.  Reid,  45 
N.  Y.  415;   Lawrence  v.  Whitney, 


115  N.  Y.  410,  5  L.  R.  A.  417, 
22  N.  E.  174;  Louisville  &  N. 
R  Co  V  Webster,  106  Tenn.  586. 
61  S.  W.  1018. 

19.  /'o.vf,  this  section,  note  28. 

20.  Fitch  V.  Johnson,  104  111. 
Ill;  Scott  V.  Burton,  2  Ashm. 
(Pa.)  324;  Crawford  v.  Witherbee, 
77  Wis.  419,  9  L.  R.  A.  561,  46  N. 
W.  545;  Bronson  v.  Coffin,  108 
Mass.  175,  11  Am.  Rep.  335;  Haz- 
lett  v.  Sinclair,  76  Ind.  488,  40 
Am.  Rep.  254;  Easter  v.  Little 
Miami  R.  Co.,  14  Ohio  St.  48.— 
the  last  three  cases,  however,  in- 
volving covenants  by  the  grantor 
to  fence,  which  might  be  regarded 
as  involving  the  grant  of  an  ease- 
ment.    See  ante,  §  357. 

It  is  to  be  observed  that  the 
burden  of  the  covenant  does  not 
necessarily  pass  with  the  land  in 
connection  with  which  the  privity 
arises;  that  is,  in  the  case  re- 
ferred to  in  the  text,  the  privity 
arises  in  connection  with  the  land 
first  conveyed,  while  the  burden 
of   the    covenant   runs   with    that 


<^  391]  Covenants  Running  With  Land.  1409 

in  the  more  ordinary  case  of  a  covenant  by  the  grantee 
of  land  as  to  something  to  be  done  or  not  to  be  done 
by  him  on  the  land  conveyed,  so  that  his  subsequent 
transferee  may  be  bound  thereby.  On  the  other  hand, 
an  agreement  by  various  mill  owners  as  to  the  use  of 
■water  will  not  bind  their  assigns,  since  there  is  no 
privity  between  them.-^  And  a  covenant  made  after 
a  conveyance,  though  between  the  parties  thereto, 
has  been  held  not  to  be  supported  by  such  privity  of 
estate  that  the  burden  will  run.^^ 

The  exact  basis  of  this  requirement  that  the 
parties  to  the  covenant  stand  in  the  relation  of  grantor 
and  grantee  in  order  that  the  covenant  may  run, 
does  not  clearly  appear.--''  As  before  indicated,  by 
some  authorities,  such  a  requirement  exists  in  order 
that  even  the  benefit  of  a  covenant  may  run.^^  In  the 
case  of  a  covenant  in  a  lease,  the  running  of  the 
covenant  is  ordinarily,  as  we  have  before  seen,  closely 
associated  with  the  existence  of  a  privity  of  estate 
between   the    interested   parties,^^    and   this   may   have 

last    conveyed.      See    Brewer    v.  Cal.    476,    with    which,    however, 

Marshall,  18  N.  J.  Eq.  337,  19  N.  Fresno  Canal  &  Irrigation  Co.  v. 

J.   Eq.    537;    Waterbury   v.   Head,  Rowell,    80    Cal.    114,    13    Am.    St. 

12   N.   Y.    St.   Rep.   361;    Clark   v.  Rep.    112,    22    Pac.    53,    does    not 

Devoe,  124  N.  Y.  120,  21  Am.  St.  appear  to  be  in  accord. 

Rep.    652,    26    N.    E.    275,    as    ex-  22.     Inhabitants  of  Plymouth  v. 

plained   in   Dexter  v.   Beard,   130  Carver,    16     Pick.     (Mass.)     183; 

N    Y.  549,  29  N.  E.  983.  Smith  v.  Kelley,  56  Me.  64.  Wheel- 

21.     Kurd    V.    Curtis,    19    Pick.  er  v.   Schad,  7  Nev.   204.     But  if 

(Mass.)    459;    Lawrence   v.  Whit-  the  covenant  and  conveyance  are 

ney,    115    N.    Y.    410,    5    L.    R.    A.  parts  of  the  same  transaction,  the 

417,    22    N.    E.    174.      In    Pennsyl-  fact    that    they    are    in    separate 

vania  it  is  held  that  the  require-  instruments    is    immaterial.    Sims 

ment  of  privity   is  subject  to  ex-  Covenants,    198;    Hills    v.    Miller, 

ceptions,    and    that,    without   any  3   Paige   (N.  Y.)   254;   Robbins  v. 

such  privity,  covenants  by  owners  Webb,  68  Ala.  393   (semble.) 

of  separate  tracts  of  riparian  land  22a.     See  a  suggestive  editorial 

as  to  the  use  of  the  water  power  note    in    15    Columbia    Law    Rev. 

will  bind  their  assignees.    Horn  v.  at  p.  55. 

Miller,   136   Pa.    640,    9   L.    R.   A.  23    See  ante,  §  389,  note  11. 

810,    20    Atl.    706.      To    the    same  24.     Ante,  §  56. 
effect,    see   Weill    v.    Baldwin,    64 


1410  Real  Property.  [§  391 

operated  to  suggest  that  in  no  case  can  tlie  burden  of 
a  covenant  run  in  tlie  absence  of  such  privity.^-^  Privity 
of  estate,  however,  as  between  a  grantor  and  grantee 
in  fee  simple  has  a  meaning  different  from  that  which 
it  has  as  between  lessor  and  lessee,  and  their  suc- 
cessors in  interest.  In  the  latter  case,  privity  of 
estate  means  the  simultaneous  ownership  by  both 
parties  of  estates  in  the  land,  while  in  the  former  case 
it  can  mean  merely  succession  in  ownership.  It  was 
occasionally  used  in  the  latter  sense  by  Coke,^"  and 
perhaps  other  early  authorities,-'  particularly  in  con- 
nection with  the  law  of  warranty,  and  conceding  the 
necessity''  of  privity  of  estate  in  order  that  the  burden 
of  a  covenant,  not  contained  in  a  lease,  may  run  with 
the  land,  it  was  reasonable  to  regard  this  requirement 
as  satisfied  by  the  succession  in  ownership  which  was 
included  under  this  designation  by  the  earlier  writers. 
In  at  least  two  states  the  conveyance  of  an  estate  in 
the  land,  as  distinguished  from  the  grant  of  an  ease- 
ment therein,^^  has  been  held  not  to  furnish  the  privity 
of  estate  necessary  to  the  creation  of  a  covenant  which 
will  run  with  the  land,-^  the  theory  being,  apparently, 
that  a  mere  succession  in  interest  is  not  sufficient  for 

25.  In  Hurd  v.  Curtis,  19  Pick.  27.  See  the  opinion  of  Holmes, 
459,  in  which  the  necessity  of  such  C.  J.,  in  Norcross  v.  James,  140 
privity  is  asserted  in  reference  Mass.  188,  2  N.  E.  946,  and  Holmes, 
to  a  covenant  by  a  fee  simple  "The  Common  Law,"  395-400. 
owner,  not  in  a  lease,  the  court  re-  28.  Post,  this  section,  note  30. 
fers  to  Webb  v.  Russell,  3  Term.  29.  Los  Angeles  Terminal  Land 
Rep.  402,  which  involved  a  coven-  Co.  v.  Muir,  136  Cal.  36,  68  Pac. 
ant  in  a  lease.  308;     Berryman    v.    Hotel    Savoy 

26.  Co.  Litt.  271a,  272b,  273,  Co.,  160  Cal.  559,  37  L.  R.  A.  (N. 
352a,  385a.  In  Whittingham's  S.)  5,  117  Pac.  677;  Norcross  v. 
Case,  8  Co.  Rep.  84,  it  is  said  James,  140  Mass.  188,  2  N.  E. 
"there  are  three  manner  of  privi-  946.  In  the  latter  case  it  is  said 
ties,  soil,  privity  in  blood,  privi-  by  Holmes,  J.,  in  delivering  the 
ty  in  estate,  and  privity  in  law.  opinion  of  the  court,  that  the 
*  *  *  Privities  in  estate  are,  as  statement  that  there  must  be 
joint  tenants,  husband  and  wife,  "privity  of  estate  between  the 
donor  and  donee,  lessor  and  covenantor  and  the  covenantee, 
lessee."  only    means    that    the    covenant 


§  391] 


Covenants  Kunning  With  Land. 


1411 


this  purpose,  but  that  the  simultaneous  existence  of 
two  distinct  interests  in  the  land,  in  the  covenantor 
and  covenantee  respectively,  is  necessary.^^* 

Grant  of  easement.    The  requirement  of  privity 


of  estate  is  satisfied  if  the  covenant  accompanies  a 
grant  by  the  owner  of  land  of  a  mere  easement  therein, 
he  retaining  the  land."'^  Accordingly,  it  has  been  held 
that  the  burden  of  a  covenant  made  upon  the  grant 
of  a  water  privilege,^  ^  or  upon  the  grant  of  a  railroad 


must  impose  such  a  burden  on  the 
land  of  the  covenantor  as  to  be  in 
substance,  or  to  carry  with  it,  a 
grant  of  an  easement  or  quasi 
easement,  or  must  be  in  aid  of 
such  a  grant."  This  statement 
accords  with  the  view  of  the  sub- 
ject elsewhere  presented  by  this 
learned  jurist,  (see  "The  Com- 
mon Law,"  at  p.  388  et  seq.),  but 
does  not  accord  with  the  ordinary 
judicial  view.  With  this  state- 
ment may  be  compared  a  state- 
ment emanating  from  the  same 
court  at  a  much  earlier  period. 
"The  stipulations  in  the  indenture 
cannot  be  construed  as  grants  and 
covenants  at  the  same  time.  If 
they  were  grants,  then  an  action 
of  covenant  is  not  the  proper 
remedy  for  the  violation  of  them; 
and  if  covenants,  the  assignee  is 
not  bound  for  want  of  privity  of 
estate  between  the  parties."  Per 
Wilde,  J.,  in  Hurd  v.  Curtis,  19 
Pick.  (Mass.)  459. 

29a.  In  Morse  v.  Aldrich,  19 
Pick.  (Mass.)  449,  above  cited,  in 
which  the  running  of  a  covenant 
created  in  connection  with  the 
grant  of  an  easement,  was  ap- 
parently first  recognized,  the  de- 
cision appears  to  be  based  on 
the  analogy  of  a   lease,  it  being 


said  that  "privity  exists  between 
the  grantor  and  grantee,  where 
a  grant  is  made  of  any  subor- 
dinate interest  in  land;  the  re- 
version or  residue  of  the  estate 
being  reserved  by  the  grantor,  all 
covenants  in  support  of  the  grant 
or  in  relation  to  the  beneficial 
enjoyment  of  it,  are  real  cove- 
nants and  will  bind  the  assignee." 

30.  Gilmer  v.  Mobile  &  M.  Ry. 
Co.  79  Ala.  569;  Sterling  Hydrau- 
lic Co.  V.  Williams,  66  111.  393; 
Fitch  V.  Johnson,  104  111.  Ill; 
Bronson  v.  Coffin,  108  Mass.  156, 
11  Am.  Rep.  335;  Lincoln  v.  Bur- 
rage,  177  Mass.  378,  52  L.  R.  A. 
110,  59  N.  E.  67;  Crawford  v. 
Witherbee,  77  Wis.  419,  9  L.  R. 
A.  561,  46  N.  W.  545.  A  covenant 
created  in  connection  with  an 
casement  was  held  to  run,  even 
though  not  entered  into  till  after 
the  grant  of  the  easement.  Morse 
V.  Aldrich,  19  Pick.  (Mass.)  449. 
Contra,  Smith  v.  Kelley,  56  Me. 
64;  Wheeler  v.  Schad,  7  Nev.  204. 
::04. 

31.  Farmers'  High  Line  Canal 
&  Reservoir  Co.  v.  New  Hamp- 
shire Real  Estate  Co.,  40  Colo. 
467,  92  Pac.  290  (semble) ;  Fitch 
v.    Johnson.   104    111.    111.   Nye   v. 


1412 


Eeal  Property. 


[§  392 


right  of  way,"^-  will  bind  a  subsequent  transferee  of  tbe 
land  or  of  the  easement.""  And  the  grant  of  an  ease- 
ment as  regards  the  construction  and  utilization  of  a 
party  wall  will  support  the  running  of  a  covenant  as 
to  compensation  for  the  use  of  the  wall.^^ 

§  392.  The  nature  of  the  covenajit.  We  have,  in 
connection  with  the  discussion  of  covenants  in  leases 
which  run  with  the  land,'''  referred  to  the  difficulty,  if 
not  impossibility,  of  framing  a  rule  for  the  determina- 
tion of  whether  a  covenant  is  such  as  to  touch  and 
concern  the  land  so  as  to  run  therewith.  '  Ordinarily, 
however,  a  covenant  is  regarded  as  touching  and  con- 
cerning the  land  if  it  is  of  value  to  the  covenantee  by 


Hoyle,  120  N.  Y.  195,  24  N.  E.  1; 
IMorchouse  v.  Woodruff,  218  N.  Y. 
494,  113  N.  E.  512;  Norfleet  v. 
Cromwell,  64  N.  C.  1;  Noonan  v. 
Orton,  4  Wis.  335;  Wooliscroft 
V.  Norton,  15  Wis.  198.  But  see 
Miller  v.  Clary,  210  N.  Y.  127,  103 
N.  E.  1114;  Barringer  v.  Virginia 
Trust  Co.,  132  N.  C.  409,  43  S. 
E.   910. 

So  a  covenant  which  was  made 
in  connection  with  a  gas  and  oil 
lease,  a  grant  apparently  of  a 
profit  a  prendre,  was  held  to  run. 
Indiana,  etc.,  Oil  Co.  v.  Hinton, 
159  Ind.  398,  64  N.  E.  224;  Har- 
bert  V.  Hope  Natural  Gas  Co.,  76 
W.  Va.  207,  84  S.  E.  770.  And 
see  Munro  v.  Syracuse,  L.  &  N 
R.  Co.,  200  N.  Y.  224,  93  N.  E. 
P16,  and  comment  thereon  in  11 
Columbia  Law  Rev.  at  p.  384. 

32.  St.  Louis,  I.  M.  &  S.  Ry. 
Co.  V.  O'Baugh,  49  Ark.  418,  5 
S.  W.  711;  Dorsey  v.  St.  Louis, 
A.  &  T.  H.  R.  Co.,  58  111.  65;  Mid- 
land  Ry.   Co.  V.   Fisher,   125   Ind. 


19,  8  L.  R.  A.  604,  21  Am.  St.  Rep. 
189,  24  N.  E.  756;  Peden  v.  Chi- 
cago. R.  I.  &  P.  Ry.  Co.,  73  Iowa. 
328,  5  Am.  St.  Rep.  6S0,  35  N.  W. 
424;  Kentucky  Cent.  R.  Co.  v. 
Kenney,  82  Ky.  154;  Ford  v.  Ore- 
gon Elec.  R.  Co.,  60  Ore.  278,  36 
L.  R.  A.  (N.  S.)  358,  Ann.  Cas. 
1914A,  243,  117  Pac.  809;  Lydick 
V.  Baltimore  &  0.  R.  Co.,  17  W. 
Va.  427. 

33.  Dorsey  v.  St.  Louis,  A.  & 
T.  H.  R.  Co.,  58  111.  65;  Fitch  v. 
Johnson,  104  111.  Ill;  Midland 
Ry.  Co.  V.  Fisher,  125  Ind.  19,  8 
L.  R.  A.  604,  21  Am.  St.  Rep.  189, 
24  N.  E.  756;  Kentucky  Cent.  R. 
Co.  V.  Kenney.  82  Ky.  154;  Ly- 
Gick  V.  Baltimore  &  O.  R.  Co.,  17 
W.  Va.  427.  So  the  benefit  may 
pass  with  a  subsequent  grant  of 
the  water  power.  Sterling  Hy- 
draulic   Co.    V.    Wniiams,    66    111. 

34.  Post,  §  393. 

35.  See  ante,  §  56(b). 


§  392] 


Covenants  Running  With  Laxd. 


141^ 


reason  of  his  oc<3upation  of  the  land  or  by  reason 
of  an  easement  which  he  has  in  the  land,  or  if  it  is 
a  burden  on  the  covenantor  by  reason  of  his  occupation 
of  the  land.  It  has  ))een  held  that  a  covenant  to  give 
free  transportation  to  the  covenantee,""  or  to  pay 
an  incumbrance  on  the  land,^^  is  of  such  a  personal 
nature  as  not  to  run.  And  the  same  view  has  been 
taken  by  some  courts  as  to  a  covenant  the  purpose 
of  which   is   to  prevent  competition  in   trade.^^ 

Among  the  covenants   which  have  been  most  fre- 
quently   considered    as    passing   with    the    grant    of    a 


36.  Morse  v.  Garner,  1  Strob, 
(S.  C.)  514,  47  Am.  Dec.  565; 
Dickey  v.  Kansas  City  &  I.  R.  T. 
Ry.  Co.,  122  Mo.  223,  26  S.  W.  685; 
Ruddick  v.  St.  Louis,  K.  &  N.  W. 
Ry.  Co.,  116  Mo.  25,  22  S.  W.  499, 
38  Am.  St.  Rep.  570;  Eddy  v. 
Hinnant,  82  Tex.  354,  18  S.  W. 
562.  So,  in  the  case  of  a  cove- 
nant by  the  grantee  of  an  ease- 
ment to  give  its  transportation 
business  to  the  grantor,  a  ferry 
company,  it  was  held  that  the 
covenant  would  not  run,  since  it 
did  not  affect  the  enjoyment  of 
the  easement,  or  of  the  land  in 
which  the  easement  was  granted, 
but  was  purely  for  the  benefit 
of  the  owner  of  the  ferry.  Wig- 
gins Ferry  Co.  v.  Ohio  &  M.  Ry. 
Co.,  94  111.  83.  Compare  Munro 
\.  Syracuse,  L.  S.  &  N.  R.  Co., 
200  N.   Y.  224,  93  N.  E.   516. 

37.  Glinn  v.  Canby,  24  Md. 
127;   Scholten  v.  Barber,  217   111. 


148,  75  X.  E.  460;  Graber  v.  Dun- 
can, 79  Ind.  565.  The  same  view 
was  taken  of  a  covenant  to  pay 
to  the  covenantee  a  percentage 
of  the  net  earnings  of  mining 
property,  against  the  transferee 
of  which  it  was  sought  to  as- 
sert the  covenant.  Consolidated 
Arizona  Smelting  Co.  v.  Hinch- 
man,  212  Fed.  803,  129  C.  C.  A. 
267. 

38.  Taylor  v.  Owen,  2  Blackf. 
(Ind.)  301;  Kettle  River  R.  Co. 
V.  Eastern  Ry.  Co.  of  Minnesota. 
41  Minn.  461,  6  L.  R.  A.  Ill,  43 
N.  W.  469;  Sjoblom  v.  Mark,  103 
Minn.  193,  114  N.  W.  746;  Tardy 
V.  Creasy,  81  Va.  553,  59  Am.  Rep. 
676;  Thomas  v.  Hay  ward,  L.  R. 
4  Exch.  311.  Contra,  Bobbins  v. 
'•.Vebb,  68  Ala.  393;  National  Union 
Bank  at  Dover  v.  Segur,  39  N. 
J.  Law  173;  Norman  v.  Wells,  17 
Wend.    (N.   Y.)    136. 


1414 


Real  Property. 


[§  392 


fee-simple  estate  are  those  to  repair  a  dam  or  canal,'^^ 
and  to  fence  or  to  repair  a  fence.^°  A  covenant  to 
maintain  a  station^ ^  or  to  stop  trains^^  ^t  a  particular 
point  has  been  held  to  rnn,  as  has  a  covenant  to  supply 
water^^  or  gas*^  and  to  pay  taxes.* ^ 

As  previously  stated/'''  a  covenant,  contained  in  an 
instrument  of  lease,  as  to  a  thing  not  in  esse,  has  been 


39.  Howard  Mfg.  Co.  v.  Water 
Lot  Co.,  53  Ga.  689;  Sterling  Hy- 
draulic Co.  V.  Williams,  66  111 
393;  Batavia  Mfg  Co.  v.  Newton 
Wagon  Co.,  91  111.  230;  Maxon 
V.  Lane,  102  Ind.  364,  1  N.  E. 
796;  Fowler  v.  Kent,  71  N.  H. 
388,  52  Atl.  554;  Nye  v.  Hoyle, 
120  N.  Y.  195,  24  N.  E.  1;  Den- 
man  V,  Prince,  40  Barb.  (N.  Y.) 
213;  Norfleet  v.  Cromwell,  64  N. 
C.  1;  Carr  v.  Lowry's  Adm'x,  27 
Fa.  St.  257;  Wooliscroft  v.  Nor- 
ton,  15  Wis.   198. 

40.  Dorsey  v.  St.  Louis,  A.  &  T. 
H.  R.  Co.,  58  111.  65;  Midland  Ry. 
Co.  V.  Fisher,  125  Ind.  19,  8  L. 
R.  A.  604,  21  Am.  St.  Rep.  189, 
24  N.  E.  756;  Lake  Erie  &  W. 
Ry.  Co.  V.  Priest,  131  Ind.  413, 
31  N.  E.  77;  Sexauer  v.  Wilson, 
136  Iowa,  357,  14  L.  R.  A.  (N.  S.) 
185,  15  A.  &  E.  Ann.  Cas.  54,  113 
N.  W.  357;  Kentucky  Cent.  R.  Co. 
V.  Kenney,  82  Ky.  154;  Chicago, 
M.  &  G.  R.  Co.  V.  Dodds  &  John- 
son, 167  Ky.  ?24,  181  S.  W.  666; 
Bronson  v.  Coffin,  188  Mass.  175, 
11  Am.  Rep.  335,  118  Mass.  156; 
Countryman  v.  Deck,  13  Abb.  N. 
C.  (N.  Y.)  110;  Dey  v.  Prentice, 
90  Hun  (N.  Y.)  27,  35  N.  Y. 
Supp.  563;  Huston  v.  Cincinnati 
&  Z.  R.  Co.,  21  Ohio  St.  236; 
Hickey  v.  Lake  Shore  &  M.  S. 
Ry.    Co.,    51    Ohio    St     40,    23    L. 


R.  A.  396,  46  Am.  St.  Rep.  545,  36 
N.  E.  672;  Kellogg  v.  Robinson, 
6  Vt.  276,  27  Am.  Dec.  550. 

41.  Georgia  Southern  Railroad 
V.  Reeves,  64  Ga.  492;  Reidsville, 
&  S.  E.  R  Co.  V.  Baxter,  13  Ga. 
App.  357,  79  S.  E.  187;  LouisviUe, 
H.  &  St.  L.  Ry.  Co.  v.  Baskett. 
—  (Ky.)  — ,  121  S.  W.  957;  Par- 
rott  V.  Atlantic,  &  N.  C.  R.  R., 
165  N.  C.  295,  Ann.  Cas.  1915D. 
165,  81  S.  E.  348;  Carnegie  Realty 
Co.  V.  Carolina,  Clinchfield,  & 
Ohio  Ry.  Co.,  136  Tenn.  300,  189 
S.  W.  371. 

42.  Gilmer  v.  R.  Co.,  79  Ala. 
569;  Ford  v.  Oregon  Elec.  R.  Co., 
60  Ore.  278,  36  L.  R.  A.  (N.  S.) 
358,  Ann.  Cas.  1914A,  280,  117 
Pac.  809. 

43.  Atlanta,  K.  &  N.  Ry.  Co.  v. 
McKinney,  124  Ga.  929,  6  L.  R. 
A.  (N.  S.)  436,  110  Am.  St.  Rep. 
215,  53  S.  E.  701;  Farmers'  High 
Line  Canal  &  Reservoir  Co.  v. 
New  Hampshire  Real  Estate  Co., 
40  Colo.  467,  92  Pac.  290. 

44.  Indiana  Natural  Gas  Co.  v. 
Hinton,  159  Ind.  398,  64  N.  E. 
224. 

45.  Barron  v.  Whiteside,  89  Md. 
448,  43  Atl.  825;  West  Virginia, 
C.  &  P.  R.  Co.  v.  Mclntire,  44 
W.   Va.    210,    28    S.    E.    696. 

46.  Ante,  §  56(b).  See  1  Tif- 
fany,   Landlord    &    Ten.,    p.    892; 


§  392]         Covenants  Running  With  Land.  1415 

frequently  considered  not  to  run  unless  ''assigns"  are 
mentioned.  Occasionally  the  same  rule  lias  been  as- 
serted in  connection  with  such  a  covenant  not  contained 
in  an  instrument  of  lease.^^ 

The  intention  of  the  parties  to  the  covenant  that 
it  shall  run  with  the  land  is  occasionally  referred  to 
as  a  consideration  of  importance  in  determining 
whether  it' does  run,^^  but  in  the  great  majority  of 
cases  no  reference  is  made  to  this  matter,  the  question 
whether  the  covenant  runs  being  regarded  as  one  to  be 
determined  by  the  consideration  whether  it  touches 
and  concerns  the  land.  The  correct  rule  appears  to 
be  that  the  parties  to  the  covenant  may,  by  indicating 
an  intention  to  that  effect,  prevent  the  covenant  from 
running,  although  it  is  such  that  othei-wise  it  would 
run,*^  wdiile  if  the  covenant  is  one  w^hich  does  not  touch 
and  concern  the  land,  the  parties  cannot  make  it  run 
by  indicating  an  intention  or  desire  that  it  shall  run.^" 
Looked  at  from  this  point  of  view,  the  rule  of  Spencer's 
case,  that  a  covenant  in  reference  to  a  thing  not  in  esse 
does  not  run  unless  assigns  are  mentioned,  in  so  far 

editorial  note,  15  Mich.  Law  Rev.  '  thing   not   in   esse,   did    not   run, 

at   p.   79.  in     the     absence     of     the     word 

47.     Md.  &  Pa.  R.  Co.,  V.  Silver,  "assigns." 

110  Md.  510,  73  Atl.  297;  Whalen  48.     Milliken  v.  Hunter,  180  Ind. 

V.    Baltimore,    &    0.    R.    Co.,    108  149,    100    N.    E.    1041;    Sexauer   v. 

Md.    11,    17    L.   R.   A.    (N.   S.)    130,  Wilson,  136  Iowa,  357,  14  L.  R.  A. 

129  Am.  St.  Rep.  423,  69  Atl.  390;  (N.  S.)   185,  15  Ann.  Cas.  54,  113 

Duester  v.  Alvin,  74  Ore.  544,  145  N.    W.    357;    Brown    v.    Southern 

Pac.  660;   Carnegie  Realty  Co.  v.  Pac.  Co.,  36  Ore.  128,  47  L.  R.  A. 

Carolina,    C.    &    0.    Ry.    Co.,    136  409,  78  Am.  St.  Rep.  761,  58  Pac. 

Tenn.  300,  189  S.  W.  371.     But  see  1104. 

Sexauer  v.  Wilson,  136  Iowa,  357,  49.  Maryland  Coal  Co.  v.  Cum- 
14  L.  R.  A.  (X.  S.)  185,  15  A.  berland,  etc.  R.  Co.,  41  Md.  343; 
&  E.  Ann.  Cas.  54,  13  N.  W.  941.  Masury  v.  Southworlh,  9  Ohio  St. 
Purvis  V.  Shuman,  273  111.  286,  348;  Wilmurt  v.  McGrane,  16  App. 
112  N.  E.  679.  So  in  Hartung  v.  Div.  412,  45  N.  Y.  Supp.  32. 
Witte,  59  "Wis.  285,  and  Gulf,  C.  50.  Ackroyd  v.  Smith,  10  Com. 
&  S.  F.  Ry.  Co.  v.  Smith,  72  Tex.  B.  164;  Fresno  Canal  &  Irr.  Co. 
122;  Brown  v.  Southern  Pac.  Co.,  v.  Dunbar,  80  Cal.  530,  22  Pac. 
36  Ore.  128,  47  L.  R.  A.  409,  78  275.  Gibson  v.  Holden,  115  111. 
Am.  St.  Rep.  761,  58  Pac.  1104,  199,  56  Am.  Rep.  149,  3  N.  E. 
It  was  held  that  a  covenant  to  282;  Kettle  River  R.  Co.  v.  East- 
build    a    fence,    as    concerning    a  ern  R.  Co.  of  Minnesota,  41  Minn. 


141G  Real,  Property.  [§  393 

as  it  is  adopted  in  any  state,^^  may  be  regarded  as 
involving  merely  a  rule  of  construction  that  a  covenant 
of  that  character  is  to  be  regarded  as  intended  to 
be  personal,  unless  a  contrary  intention  is  shown  by 
the  mention  of  assigns. 

§  393.  Party  wall  agreements.  Whether  the  stipu- 
lation, in  a  party  wall  agreement,-"'-  that  one  of  the 
two  adjoining  owners,  parties  thereto,  upon  using  a 
wall  built  by  the  other  upon  the  division  line,  shall 
pay  to  the  latter  part  of  the  cost  of  the  wall,  is  a 
covenant  which  runs  w4th  the  land,  has  been  the  sub- 
ject of  frequent  discussion  and  adjudication.^" 

As  before  stated,  the  grant  of  an  easement  at  the 
time  of  the  making  of  a  covenant  is  regarded  as  fur- 
nishing the  "privity  of  estate"  necessary  to  enable  a 
covenant  to  run  with  the  land,  and  such  a  grant  of  an 
easement  appears  to  occur  in  the  case  of  a  party  wall 
agreement.  If  the  wall  is  regarded  as  belonging  to 
both  the  land  owners  immediately  upon  its  construction, 
the  agreement  in  effect  involves  a  grant,  to  take  effect 
upon  the  construction  of  the  wall,  by  the  non  builder 
to  the  builder,  of  an  easement  to  use  the  former's 
half  of  the  wall  for  purposes  of  support,  and  also  a 
grant,  to  take  effect  subsequently,  by  the  builder  to 
the  non  builder,  of  an  easement  to  use  the  former's 
half  of  the  wall  for  purposes  of  support;  in  other 
words,  it  involves  the  grant  of  cross  easements  of 
support.^^     If   the   wall   is    regarded    as    belonging   to 

461,  6  L.  R.  A.  Ill,  43  N.  W.  469;  53.     The     authorities     on     the 

Glenn  v.  Canby,  24  Md.  127;  Brew-  subject,  previous  to  1903,  are  con- 

er  V.  Marshall,  18  N.  J.  Eq.  337,  veniently  grouped  in  a  note  in  66 

19    N.    J.    Eq.    537,    97    Am.    Dec.  L.  R.  A.  at  p.   673.     The  subject 

679;    Wilmurt  v.   McGrane,   16   N.  Is  discussed,   in   a   most   discrim- 

Y.  App.  Div.  45  X.  Y.  S.  32;  Mas-  inating   manner,    with    references 

ury  V.  Southworth,  9  Ohio  St.  348;  to  the   cases  by  Professor  Ralph 

Louisville  &  N.  R.  Co.  v.  Webster,  W.  Aigler,  in  10  Mich.  Law  Rev. 

106  Tenn.  586,  61  S.  W.  1018.  at  p.   186. 

51.  Ante,  this  section,  notes  46,  54.     Roche    v.    Ullman,    104    111. 
47.  1;   King  v.  Wight,  155  Mass.  444. 

52.  Ante,  §  356.  29  N.  E.  644;  Kimm  v.  Griffin,  67 


§  393] 


Covenants  Running  With  Land. 


1417 


the  landowner  who  builds  it,  until  the  other  pays 
to  him  part  of  the  cost  thereof,  there  is  a  grant  of 
cross  easements  of  support,  to  take  effect  when  such 
payment  is  made,  and  title  to  part  of  the  wall  ac- 
cordingly vests  in  the  non  builder,  and  there  is  also 
a  grant,  by  the  non  builder  to  the  builder,  of  an  ease- 
ment to  maintain  the  wall  in  part  on  the  former's 
land.^^ 

Running*  of  benefit.    The  right  to  compensation 


under  the  agreement  for  the  use  of  the  wall  is  by 
some  cases  considered  to  appertain  to  the  land,  and  to 
pass  to  a  transferee  of  the  proprietor  who  built  the 
wall,^*'  while  by  others  it  is  regarded  as  personal  to 
such  proprietor,  so  as  not  to  pass  to  his  transferee.^" 


Minn.  25,  64  Am.  St.  Rep.  385,  69 
N.  W.   634. 

55.  Conduitt  v.  Ross,  102  Ind. 
166;  King  v.  Wight,  155  Mass. 
444,   29   X.   E.   644. 

56.  Rugg  V.  Lemley,  78  Ark. 
65,  115  Am.  St.  Rep.  17,  93  S. 
W.  570;  Eberly  v.  Behrend,  20  D. 
C.  215;  Ferguson  v.  Worrall,  31 
Ky.  Law  Rep.  219,  9  L.  R.  A.  (N. 
S.)  1261,  101  S.  W.  966;  Savage 
V.  Mason,  3  Cush.  (Mass.)  500; 
King  V.  Wight,  155  Mass.  444, 
29  N.  E.  644;  Kimm  v.  Griffin,  67 
Minn.  25,  64  Am.  St.  Rep.  385,  69 
N.  W.  634;  Piatt  v.  Eggleston,  20 
Ohio  St.  414.  See  the  remarks 
by  Holmes,  C.  J.,  in  Lincoln  v. 
Burrage,  177  Mass.  378,,  52  L.  R. 
A.  110,  59  N.  E.  67,  adverse  to  the 
view  that,  while  the  burden  of 
such  a  covenant  runs  with  the 
land,  the  benefit  thereof  can  be 
regarded  as  "in  gross"  or  per- 
sonal to  the  covenantee. 

In  order  that  the  transfe'Tee  of 
the  builder  be  able  to  recover 
upon  the  contract  to  pay  part  of 
the  cost  of  the  wall  upon  using  it. 


the  party  wall  agreement  must, 
it  has  been  held  in  Massachusetts, 
be  under  the  seal  of  the  other 
party,  as  otherwise  the  builder 
acquires,  not  an  easement,  but  a 
mere  license  to  build  on  the 
other  land,  and  no  privity  exists 
to  support  the  running  of  the 
covenant.  Joy  v.  Boston  Penny 
Sav.  Bank,  115  Mass.  60.  Even 
if  the  agreement  is  not  under 
seal,  the  transferee  of  one  tract, 
by  accepting  a  conveyance  bind- 
ing him  to  pay  a  part  of  the  cost 
of  the  wall,  becomes  liable  ac- 
cordingly. Maine  v.  Cumston,  98 
Mass.   317. 

57.  Kenny  v.  Mackenzie,  12 
Ont.  App.  346;  Crater  v.  McCor- 
mick,  4  Colo.  197;  Conduitt  v. 
Ross.  102  Ind.  166,  26  N.  E.  198; 
Mayer  v.  Martin,  83  Miss.  322,  35 
So.  218  (dictum) ;  Cole  v.  Hughes. 
54  N.  Y.  444;  Lea's  Appeal,  9 
Pa.  St.  504;  Todd  v.  Stokes,  10 
Pa.  St.  155;  Parsons  v.  Baltimore 
Building  &  Loan  Ass'n,  44  W. 
Va.  335,  67  Am.  St.  Rep.  769,  29 
S.   E.  999. 


1418  Real  Property.  [§  393 

The  right  to  compensation  has  occasionally  been  con- 
sidered to  be  personal  to  the  builder,  not  passing  with 
the  land,  if  the  ownership  of  half  the  wall,  by  the 
express  terms  of  the  agreement,  vests  immediately  on 
its  construction,  contrary  to  the  general  rule,  in  the 
owner  of  the  other  land,  though  he  cannot  use  it 
till  he  pays  his  share,^^  the  theory  being  that,  in 
such  case,  the  promise  of  the  non  builder  is  merely 
to  reimburse  the  builder  in  part  for  his  expenditure, 
the  performance  of  which  promise  has  no  effect  on  the 
land.  In  at  least  one  case,  in  which  the  title  to  no  part 
of  the  wall  was  regarded  as  vesting  in  the  non  builder 
until  payment  was  made  by  him,  the  right  of  the  trans- 
feree of  the  builder  to  receive  the  payment  was  based 
on  the  theorv%  not  that  the  benefit  of  the  covenant  ran 
with  the  land,  but  rather  that  he  was  the  vendor  of 
part  of  the  wall.°^ 

The  fact  that  an  intention  appears  in  the  agree- 
ment that  the  covenant  shall  run  with  the  land,  as  when 
it  is  so  stated,^"  or  even  when  the  agreement  is  in 
terms  made  binding  on  assigns,^  ^  has  occasionally  been 

In    New   York,    it    seems,    how-  18  111.  App.  439.  Pillsbury  v.  Mor- 

ever,  that  the  right  to  compensa-  ris,   54   Minn.   492,   56   N.   W.   170. 

tion   passes   with  the  land   if  the  And  Professor  Aigler's  discussion, 

covenant  is  general  in  terms,  re-  10  Mich.  Law  Rev.  at  p.  195. 

ferring  to  the  possible  construe-  59.     Gibson   v.   Holden,   115   111. 

tion  of  the  wall  by  either  party.  199,    56    Am.    Rep.    133,    3    N.    E. 

Mott   V.    Oppenheimer,    135   N.    Y.  272.      See    Rugg    v.    Lemley,    78 

312,    17    L.    R.    A.    409,    31    N.    E.  Ark.   65,  115  Am.   St.   Rep.   17,  93 

1097;    Sebald    v.    Mulholland,    155  S.  W.  570;   Piatt  v.  Eggleston,  20 

N    Y.    455,    50    N.    E.    260;    Craw-  Ohio    St.    414. 

ford    v.    Krollpfeiffer,    195    N.    Y.  60.     Jebeles    etc.    Confectionery 

185,    133    Am.    St.    Rep.    783,    88  Co.  v.  Brown,  147  Ala.  593,  11  Ann. 

N.  E.  29.  Cas.    525,    41    So.    626;    Adams    v. 

58.     Gibson   v.   Holden,   115   111.  Noble,    120    Mich.    545,    79    N.   W. 

199,    56    Am.    Rep.    133,    3    N.    E.  810;  Loyal  Mystic  Legion  v.  Jones, 

272;   McChesney  v.  Davis,   86  111.  73    Neb.   342,   102   N.   W.    621. 

App.  380;  Bloch  v.  Isham,  28  Ind.  61.     Southworth   v.   Perring,  71 

37.     See  Mickel   v.  York,  175   111.  Kan.   755,  2  L.  R.  A.    (N.   S.)    87, 

62,  51  N.  E.  848;  Tomblin  v.  Fish,  114    Am.    St.    Rep.    527,    81    Pac. 


§  393]         Covenants  Running  With  Land.  1419 

referred  to  in  support  of  a  decision  that  in  the  par- 
ticular case  the  benefit  passed,  while  conversely  the 
absence  of  any  such  showing  of  intention  has  been 
referred  to  in  support  of  a  contrary  decision.'^- 

E" /en  though  the  benefit  of  the  covenant  would 
otherwise  pass,  the  party  building  the  wall  may,  it 
has  been  held,  upon  the  grant  of  his  parcel,  reserve 
the  right  to  compensation  on  account  of  the  use 
which  may  be  subsequently  made  of  the  wall  by  the 
adjoining  proprietor.'"-^ 

Occasionally  the  benefit  of  the  stipulation  for 
pajTBent  of  part  of  the  cost  of  the  wall  has  been  re- 
garded as  passing  to  a  grantee  of  the  builder  of  the 
wall,  not  on  the  theory  that  it  is  a  covenant  running 
with  the  land,  but  because  the  instrument  by  which  the 
land  was  conveyed  also  transferred  in  terms  the 
benefit  of  the  stipulation,^'^  or  on  the  theory,  apparently, 
that  a  transfer  in  terms  of  the  land  is  to  be  construed 
as  also  intended  to  transfer  the  benefit  of  the  stipula- 
tion, as  if  it  were  so  stated.^ 

In  one  or  two  cases  the  grantee  of  the  builder 
appears  to  be  regarded  as  entitled  to  recover  part 
of  the  cost  of  the  wall  on  the  theory,  not  of  contract, 
but  rather  of  quasi  contract,  that  is,  that  the  person 
making    use    of    another's    wall    is    under    an    implied 

481,  82  Pac.  785;   King  v.  Wight,  63.     Conduitt  v.  Ross,  102   Ind. 

155  Mass.  444,  29  X.  E.  644;   Hoff-  166,    26    X.    E.    198;     Pillsbury    v. 

man    v.    Dickson,    47    Wash.    431,  Morris,    54    Minn.    432,    56    X.   W. 

125    Am.    St.    Rep.    907,    15    Ann.  170. 

Cas.  173,  92   Pac.  272,  93  Pac.  523.  64.     Keating     v.     Korfhage,     88 

Sandberg    v.    Rowland,    51    Wash.  Mo.    524;     Parsons    v.    Baltimore 

7,  97  Pac.  1087.    See  Loyal  Mystic  Bldg.  &  L.  Ass'n,  44  W.  Va.  335. 

Legion  v.  Jones,  73  Xeb.  342,  102  29  S.  E.  999,  67  Am.  St.  Rep.  769; 

X.  W.  621;   Weyman  v.  Ringold,  1  Ellinsburg   Lodge   Xo.    20   v.   Col- 

Bradf.  (X.  Y.  Surr.)  40.  lins,  68  Wash.  94,  122  Pac.  602. 

62.     Conduitt   v.   Ross,  102   Ind.  65.     See   Roche   v.   Ullman,   104 

166,    26    X.    E.    198;     Behrens    v.  111.  11;  Sharp  v.  Cheatham,  88  Mo. 

Hoxie,  26  111.  App.  417.     See  Mott  498,    57    Am.    Rep.    433.    Mott    v. 

V.    Oppenhiemer,    135    N.    Y.    312,  Oppenheimer,    135    N.    Y.    312,    17 

17  L.   R.   A.  409,  31   X.  E.   1097.  L.    R.   A.    409,   31    N.   E.    1097. 


1420  Real  Property.  [§  393 

assumpsit  to  make  compensation  to  the  owner  of  the 
wall.^^ 

The  statutes  in  regard  to  party  walls"'  have 
ordinarily  been  construed  as  entitling  the  grantee  of 
the  builder  of  the  wall  to  enforce  the  statutory  liability 
for  a  portion  of  the  cost  of  the  wall/'^  But  the  user  of 
the  wall  by  the  adjoining  lot  o^\^ler  matures  the  ob- 
ligation, so  that  the  right  to  compensation  does  not 
pass  by  a  subsequent  conveyance  of  the  land.*'^ 

Running  of  the  burden.     Agreements  between 


owners  of  adjoining  pieces  of  land  that,  in  case  of 
the  erection  by  either  of  them  of  a  party  wall  upon 
the  division  line,  a  part  on  each  tract,  the  other  will, 
if  he  subsequently  uses  such  wall,  pay  his  share  of 
the  cost,  have  usually  been  held  to  bind  a  subsequent 
transferee  of  either  owner  for  a  part  of  the  cost  upon 
his  user  of  such  wall  previously  erected  by  the  owner 
of  the  other  property,'*^  though  there  are  states  in 
which  such  liability  on  the  part  of  the  transferee 
is   denied."^     The  fact  that  the  party  wall  agreement 

66.  Post,  §  393,  note  77.  115   III.   199,   56  Am.   Rep.   146,   3 

67.  Ante,  §  365.  N.   E.   282;    Conduitt  v.   Ross,  102 

68.  Pfrommer  v.  Taylor,  27  Ind.  166,  26  N.  E.  198;  Ferguson 
Del.  113,  86  Atl.  212;  Halpine  v.  WorraU,  31  Ky.  L.  Rep.  219,  9 
V.  Barr,  21  Dist.  Col.  331;  Thorn-  L.  R.  A  (X.  S.)  1261,  101  S.  W. 
son  V.  Curtis,  28  Iowa,  229;  Irwin  966;  Savage  v.  Mason,  3  Cush. 
V.  Peterson,  25  La.  Ann.  300;  (Alass.)  500;  Standish  v.  Law- 
Hunt  V.  Ambruster,  17  N.  J.  Eq.  rence,  111  Mass.  Ill;  Richardson 
208;  Knight  v.  Beenken,  30  Pa.  v.  Tobey,  121  Mass.  457;  King  v. 
372;  Vollmer's  Appeal,  61  Pa.  118;  Wight,  155  Mass.  444,  29  N.  E. 
Contra  under  an  earlier  Pennsyl-  644;  National  Life  Ins.  Co.  of 
vania  statute,  Dannaker  v.  Riley,  ]\Iontpelier  v.  Lee,  75  Minn.  157, 
14  Pa.  435.  77  N.  W.  794;   Burr  v.  Lamaster, 

69.  Eberly  v.  Behrend,  9  30  Neb.  688,  9  L.  R.  A.  637,  27  Am. 
Mackey  (20  D.  C.)  215;  Lea  v.  St.  Rep.  428,  46  N.  W.  1015;  Gar- 
Jones,  23  Pa.  Super.  Ct.  587,  209  mire  v.  Willy,  36  Neb.  340,  54  N. 
Pa.  22,  57  Atl.  1113.  W.    562;    Hall    v.    Geyer,   14   Ohio 

70.  Roche    v.   UUman,   104    111.  Cir.  Ct.  R.  229,  7  Ohio  Dec.  436. 
11;  Mackin  v.  Haven,  187  111.  480,  71.     Sharp  v.  Cheatham,  88  Mo. 
58    N.    E.    448;    Tomblin    v.    Fish,  498;  Nalle  v.  Paggi,  —  (Tex  )  — , 
18  HI.  App.  439;  Gibson  v.  Holden,  9  S.  W.  205.     In   Nalle  v.   Paggi, 


§  398] 


Co\'EXANTS  RrxxiXG  With  Laxd. 


1421 


is  ill  terms  binding  on  the  assigns  of  the  i)arties  has 
been  referred  to  as  making  the  burden  of  the  covenant 
run  with  the  land'-  and  a  statement  that  the  covenant 
is  to  run  with  the  land  would  no  doubt  have  quite  as 
great  an   effect.'" 

Such  an  agreement  is,  it  seems,  prima  facie,  con- 
strued as  providing  for  reimbursement  by  the  person 
alone  who  uses  the  wall  for  the  construction  of  a 
building;  and  consequently  the  original  covenantor,  if 
he  does  not  use  the  wall,  is  not  liable  on  his  covenant,'^ 
nor  is  one  to  whom  the  land  is  transferred  after  it  has 
been  built  on  by  his  grantor  ordinarily  so  liable.'" 


SI  Tex.  201,  1  L.  R.  A.  33,  16  S. 
W.  932,  it  was  held  that  the  non 
builder,  party  to  the  agreement, 
having  contracted  to  pay  half  the 
value  of  the  wall  when  he  used  it, 
became  personally  liable  for  half 
the  value  immediately  on  trans- 
ferring his  land  to  another,  and 
thus  becoming  incapable  of  using 
the  wall. 

In  New  York  it  is  held  that  the 
covenant  to  pay  part  of  the  cost 
runs  with  the  land,  if  the  agree- 
ment is  general  in  terms,  con- 
templating the  possible  construc- 
tion of  the  wall  by  either  party  in 
the  future,  without  reference  to 
any  present  intention  of  building 
a  wall,  while  it  does  not  run 
when  it  involves  a  specific  agree- 
ment that,  if  the  party  named 
build  the  wall,  the  other  party 
shall  pay  part  of  the  cost  thereof 
upon  using  it.  Sebald  v.  Mulhol- 
land,  155  X.  Y.  455,  50  X.  E.  260; 
Crawford  v.  Krollpfeiffer,  195  X. 
Y.  185,  88  N.  E.  29. 

72.  Roche  v.  Ulman,  104  111. 
11;  South  worth  v.  Perring,  71 
Kan.  755,  81  Pac.  481,  2  L.  R.  A. 
(N.  S.)  87,  114  Am.  St.  Rep.  527, 
82   Pac.  785;   King  v.   Wright,   155 

2  R.   P.— 15 


-Mass.  444,  29  X.  E.  644;  Kimm  v. 
Griffin,  67  .Minn.  25,  64  Am.  St. 
Rep.  385,  69  X.  W.  634;  Hoffman 
v.  Dickson,  47  Wash.  431,  125  Am. 
St.  Rep.  907,  15  Ann.  Cas.  173. 
92  Pac.  272,  93  Pac.  523. 

73.  Jebeles  h  Colias  Confec- 
tionery Co.  V.  Brown,  147  Ala. 
593,  11  Ann.  Cas.  525,  41  So.  626; 
Roche  V.  Ulman,  104  111.  11;  Rein- 
hardt  v.  Holmes,  143  Mo.  App. 
212,  127  S.  W.  611;  Adams  v. 
Xoble.  120  -Mich.  545,  79  X.  W. 
810. 

There  is  one  decision  to  the 
effect  that  although  the  covenant 
was  not  previously  one  the  bur- 
den of  which  would  run  with  the 
land,  its  character  in  this  regard 
is  changed  if  a  subsequent  con- 
veyance by  the  covenant  is  in 
terms  subject  to  the  party  wall 
agreement.  Ellinsburg  Lodge  Xo. 
20,  I.  0.  F.  C.  V.  Collins,  68  Wash. 
94,  122  Pac.  602. 

74.  Standish  v.  Lawrence,  111 
Mass.  Ill;  Jordan  v.  Kraft,  33 
Xeb.  844;  Percival  v.  Colonial  In  v., 
Co.,  140  Iowa,  275,  24  L.  R.  A.  (X. 
S.)    293,   115  X.  W.   941. 

75.  Pfeiffer  v.  .Matthews,  161 
.Mass.  487,  42  Am.  St.  Rep.  435.  37 


1422  Eeal  Peoperty.  [^  393 

Occasionally  reference  is  made  in  the  decisions  to 
the  existence  in  the  particular  case-  of  notice  of  the 
party  wall  agreement  on  the  part  of  the  person  sought 
to  be  charged,  as  if  lack  of  notice  might  prevent  the 
running  of  the  covenant  as  against  him.'^''  And  it 
may  be  assumed  that  the  courts  would  hesitate  to 
impose  such  liability  on  one  who  purchased  the  land 
without  notice,  actual  or  constructive,  of  the  agree- 
ment. 

Occasionally  the  court,  without  reference  to  the  doc- 
trine of  covenants  running  with  the  land,  appears  to  have 
implied  an  assumpsit,  on  the  part  of  a  subsequent 
grantee,  taking  with  notice  of  his  grantor's  agreement 
that  part  of  the  cost  of  the  wall  shall  be  paid  upon 
its  user,  to  make  payment  accordingly,  such  assumpsit 
being  implied  in  favor  of  the  person,  whether  the 
original  builder  or  his  grantee,  who  owns  the  wall  at 
the  time  of  its  user  by  the  owner  of  the  other  prop- 
erty.'^'^      This    implied   assumpsit    involves    a    liability, 

N.    E.    571;    First    Nat.    Bank    v.  104   N.   W.   607,   it  was   held  that 

Security  Bank,  61  Minn.  25,  63  X.  the  grantee  was  not  affected  with 

W.   264.     But  in   Iowa  a  grantee  notice   of   the   agreement  by   rea- 

who   purchases    with   notice   that  son  of  the   presence  of  the  wall 

his   grantor,  who   used   the   wall,  on  his  land.     This  was  however 

has  not  paid  for  it  as  agreed  is  a    proceeding    for    an    injunction, 

perhaps  liable.    Pew  v.  Buchanan,  and  the   decision  in  favor  of  de- 

72  Iowa,  637,  34  N.  W.  453.  Per-  fendant    may    presumably    be    re- 

cival    V.    Colonial    Inv.    Co.,    140  garded    as    based    on    the    theory 

Iowa,    275,    24    L.    R.    A.    (N.    S.)  that    the    agreement    created    an 

293,  115  N.  W.  941.  equitable    charge    (Post,   note    80) 

76.     Lorenzi   v.    Starmarket,    19  which    was    effective    as    against 

Idaho,    614,    115    Pac.    490.      See  purchasers  with  notice  only. 
Roche  V.  Ullman,  104  111.  11;  Har-  77.     Standish  v.   Lawrence,  111 

ris    V.    Dozier,    72    111.    App.    542;  Mass.   Ill;    Richardson   v.  Tobey, 

McChesney  v.   Davis,  86  111.  App.  121  Mass.   457,  23  Am.  Rep.   283; 

380;     Richardson    v.    Tobey,    121  Brown  v.  Pentz,  1  Abb.  App.  Dec. 

Mass.  457,  23  Am.  Rep.  283;   Gar-  227,   per    McCouu,   J.,    Burlock   v. 

mire  v.  Willy,  36  Neb.  340,  54  N.  Peck,  2  Duer  90;  and  see  Piatt  v. 

W.  562.  Eggleston,   20   Ohio   St.   414;    Na- 

In  Scottish  American  Mortgage  tional    Life    Ins.    Co.    v.    Lee,    75 

Co.    V.    Russell,    20    S.    Dak.    310,  Minn.  157,  77  N.  W.  794. 


§  393]         Covenants  Kuxning  With  Land.  1423 

not  in  contract,  }3ut  in  quasi  contract.  But  ordinarily, 
as  before  stated,'^^  no  liability  is  imposed  upon  one 
using  a  wall  placed  in  part  on  his  land  by  another,  in 
the  absence  of  an  agreement  on  his  part,  or  on  the 
part  of  his  predecessor  in  title,  to  make  compensation 
in  the  case  of  its  use  by  him.  The  theory  of  implied  as- 
sumpsit, above  referred  to,  appears  to  be  that  adopted 
in  England,  in  order  to  impose  liability  on  a  sub- 
sequent grantee  of  the  covenantor.'''* 

In  a  few  cases  it  has  been  said  that  an  agreement 
of  the  character  referred  to  has  the  effect  of  creating 
an  equitable  charge,^*'  or  lien,^^  so  that  a  grantee 
claiming  under  the  non  builder,  if  he  takes  with  notice, 
express  or  implied,  of  the  agreement  to  pay  for  the 
use  of  the  w^all,  takes  subject  thereto.  And  occasionally 
such  an  agreement  has  apparently  been  regarded  as 
creating  an  equitable  easement  as  regards  the  pay- 
ment of  part  of  the  cost  of  the  wall.^- 

The  view  that  by  such  an  agreement  an  equitable 
lien  or  charge  is  created  involves  the  proposition  merely 
that,  in  case  the  wall  built  by  the  owner  of  one  tract 
is  used  by  the  owner  of  the  other,  the  liability  for 
the    stipulated   portion    of   the   cost   of   the    wall   may 

78.  Ante,  §  356  ment   for   lien) ;    Parsons   v.    Bal- 

79.  Christie  v.  Mitchison,  36  timore  Building  &  L.  Ass'n,  44  W. 
Law  Times  N.  S.  621;  Irving  v.  Va.  335,  67  Am.  St.  Rep.  769,  29 
Turnbull  (1900),  2  Q.  B.  129.  The  N.   E.   999. 

latter    case    is    criticized    in    edi-  In  one  state  a  grantee  has  been 

torial  notes,  14  Harv.  Law  Rev.  at  regarded,  by  force  of  the  statute 

p.  297,  and  1  Columbia  Law  Rev.  as  to  party  walls,  as  taking  tha 

at  p.  257.  land  subject  to  a  lien  for  a  por- 

80.  Sharp  v.  Cheatham,  88  Mo.  tion  of  the  cost  of  the  wall,  if 
498,  57  Am.  Rep.  433;  Keating  v.  it  was  used  by  his  grantor.  Pew 
Korfhage,  88  Mo.  254;  Stehr  v.  v.  Buchanan,  72  Iowa,  637,  34 
Raben,  33  Neb.  437,  50  N.  W.  327.  N.  W.  453. 

81.  Nelson  v.  McEwen,  35  111.  82.  Sharp  v.  Cheatham,  88  -Mo. 
App.  100;  First  Nat.  Bank  v.  Se-  498,  57  Am.  Rep.  433;  Keating  v. 
curity  Bank,  61  Minn.  25,  63  N.  W.  Korfhage,  88  Mo.  254;  Stehr  v. 
264.  Arnold  v.  Chamberlain,  14  Raben,  33  Neb.  437,  50  N.  W.  327. 
Tex.  Civ.  App.  634  (express  agree- 


1424  Real  Property.  [§  393 

be  enforced  against  the  land  by  foreclosure  sale 
But  whether  such  a  lien  should  be  recognized  in  the 
absence  of  any  language  showing  an  intention  to  cre- 
ate it  may  well  be  questioned.  And  the  theory  of 
equitable  charge  or  lien  furnishes  no  ground  for  im- 
posing a  personal  liability  upon  a  subsequent  grantee 
of  the  land,*'^  though  it  is  not,  it  seems,  inconsistent 
with  the  existence  of  such  liability.*^  That  is,  a  grantee 
may  in  some  jurisdictions  be  personally  liable  as  upon 
a  covenant  running  with  the  land,  and  the  covenantee 
at  the  same  time  have  an  equitable  lien  upon  his  land 
for  part  of  the  cost  of  the  wall.  The  view  that  by 
such  an  agreement  an  equitable  easement  is  created 
appears  to  involve  the  proposition  that  as  one  who 
takes  with  notice  of  an  agreement  by  his  predecessor 
in  title  that  the  land  shall  not  be  used  in  a  certain 
way  may  be  restrained  from  making  such  use,^^*"  so 
one  who  takes  with  notice  of  an  agreement  that  the 
land  shall  not  be  used  without  the  making  of  a  certain 
payment,  may  be  restrained  from  making  such  use 
without  making  the  payment. ^-^  In  so  far  as  the 
theory  of  equitable  easement,  however,  may  involve  the 
assumption  that  the  right  to  use  the  wall  is  conditional 
upon  payment  of  part  of  the  cost  thereof,  it  does 
not  accord  with  the  construction  sometimes,  perhaps 
usually,  placed  upon  a  party  wall  agreement,  that  the 
right  to  use  the  wall  is  not  dependent  upon  payment 
of  the  stipulated  part  of  the  cost.***^ 

83.  See  Keating  v.  Korfhage,  88       Garmire    v.    Willy,    36    Xeb.    340, 
Mo.    524;     Parsons    v.    Baltimore      .54  N.  W.  562. 

Bldg.  &  L.   Ass'n,  44  W.  Va.   335,  84a.     Po.^t,  §  394. 

67  Am.  St.  Rep.  769,  29  N.  E.  999.  85.     See  Gibson  v.   Holden,  115 

84.  First  Nat.  Bank  v.  Security  111.  199,  56  Am.  Rep.  146,  3  X.  E. 
Bank,  61  Minn.  25,  63  N.  W.  624;  282. 

Roche  V.  unman,  104  111.  11;  Har-  86.     Ante,  §  361,  note  39. 

ris    V.    Dozier,    72    111.    App.    542. 


CHAPTER  XV. 

RESTRICI'IONS   ENFORCEABLE    IN    EQUITY. 

§  394.  General  considerations. 

394.  Character  of  agreement. 

396.  Theory  of  enforcement. 

397.  Persons  subject  to  restriction. 

398.  Notice. 

399.  Persons  entitled   to  enforce    restriction. 

400.  Existence  of  general  plan. 

401.  Defenses  to  enforcement. 

§  394.  General  considerations.  Even  in  jurisdic- 
tions where,  as  in  England,  the  burden  of  a  covenant 
does  not  run  with  the  land,  an  agreement  as  to  the 
use  of  land  may,  under  certain  circumstances,  affect 
a  subsequent  purchaser  of  the  land  who  takes  with 
notice  of  the  agreement,  equity  in  such  case  enjoining 
a  use  of  the  land  in  violation  of  such  agreement.^  As 
stated  in  the  leading  case  on  the  subject, ^'"^  "the  ques- 
tion is  not  whether  the  covenant  runs  with  the  land, 
but  whether  a  party  shall  be  pennitted  to  use  the  land 

1.     See,  on  the   subject  of   this  Heights  Co.  of  Baltimore,  70  Md. 

chapter,    an    excellent   article    by  493,  3  L.  R.  A.  579,  17  Atl.  372; 

Professor  George  L.  Clark,  in  IG  Feabody  Heights  Co.  of  Baltimore 

Mich.  Law  Rev.  at  p.  90.  City    v.    Willson,    82    Md.    186,    36 

la.  Tulk  V.  Moxhay,  2  Phillips,  L.  R.  A.  393,  32  Atl.  386,  1077; 
774.  See,  to  the  same  effect,  De  Whitney  v.  Union  Ry.  Co.,  11  Gray 
Mattes  V.  Gibson,  4  De  G.  &  J.  (Mass.)  359,  71  Am.  Dec.  715; 
276;  Luker  v.  Dennis,  7  Ch.  Div.  Watrous  v.  Allen,  57  Mich.  362, 
227;  McMahon  v.  Williams,  79  58  Am.  St.  Rep.  363,  24  N.  W. 
Ala.  288;  Bryant  v.  Grosse,  155  104;  Burbank  v.  Pillsbury,  48  N. 
Cal.  132,  99  Pac.  99;  Frye  v.  H.  475,  97  Am.  Dec.  633;  Kirk- 
Partridge,  82  111.  267;  Hutchin-  Patrick  v.  Peshine,  24  N.  J.  Eq. 
sun  V.  Ulrich,  145  111.  336,  21  L.  206;  Coudert  v.  Sayre,  46  N.  J. 
R.  A.  391,  34  N.  E.  556;  Wieg-  Eq.  386,  19  Atl.  190;  Hayes  v. 
man  v.  Kusel.  270  HI.  520,  110  Waverly  &  P.  Ry.  Co.,  51  N.  J. 
N.    E.    886;    Newbold    v.    Peabody  Eq.  345;    Cotton   v.   Cresse,  80  N. 

(14:^:,) 


142G 


Real  Property. 


[§  394 


in  a  manner  inconsistent  with  the  contract  entered 
into  by  his  vendor,  and  with  notice  of  which  he  pur- 
chased." The  person  thus  affected  by  the  agreement 
as  to  the  use  of  the  land  may  be  a  purchaser,  a  lessee,^ 
or  a  mere  occupant  of  the  land  under  license.^  Such 
an  agreement  may  occur  in  connection  with  a  con- 
veyance of  land,  restricting  the  grantor,  or  the  sub- 
sequent transferees  of  the  grantor,  as  regards  the 
use  of  land  retained  by  him,^  or  restricting  the  grantee 
as  regards  the  use  of  the  land  conveyed.^  Or  it  may 
be  independent  of  any  conveyance  of  land,  being  merely 
an  agreement  between  adjoining  owners  as  regards  the 
use  of  their  land.'' 


J.  Eq.  540,  85  Atl.  600;  Wootton 
V.  Seltzer,  84  N.  J.  Eq.  207,  93 
Atl.  1087;  Tallmadge  v.  East  River 
Bank,  26  N.  Y.  105;  Trustees  of 
Columbia  College  v.  Lynch,  70  N. 
Y.  440;  Hodge  v.  Sloan,  107  N. 
Y.  244,  1  Am.  St.  Rep.  816,  17  N. 
E.  335;  Hills  v.  Miller,  3  Paige 
(N.  Y.)  254,  24  Am.  Dec.  218; 
Brown  v.  Huber,  80  Ohio  St.  183, 
88  N.  E.  322;  St.  Andrew's  Luth- 
eran Church's  Appeal,  67  Pa.  St. 
512;  Town  of  Middletown  v.  New- 
port Hospital,  16  R.  I.  319,  15 
Atl.  800;  Ball  v.  Milliken,  31  R. 
I.  36,  37  L.  R.  A.  (N.  S.)  623,  Ann. 
Cas.  1912A,  1334,  76  Atl.  789. 

2.  Wilson  V.  Hart,  1  Ch.  App. 
463;  Spicer  v.  Martin,  14  App. 
Cas.  12;  Parker  v.  Nightingale,  6 
Allen  (Mass.)  341,  83  Am.  Dec. 
632. 

3.  Mander  v.  Falcke  [1891]  2 
Ch.  554. 

4.  See  e.  g.,  Halle  v.  Newbold, 
69  Md.  265;  Bridgewater  v.  Ocean 
City  R.  Co.,  63  N.  J.  Eq.  798,  52 
Atl.  1130;  Brown  v.  Huber,  80 
Ohio  St.  183,  88  N.  E.  322;  Water- 


town  V.  Cowen,  4  Paige  (N.  Y.) 
510,  27  Am.  Dec.  80;  Nicoll  v. 
Fenning,  L.  R.  19  Ch.  Div.  258. 

5.  See  e.  g.,  Weil  v.  Hill,  193 
Ala.  407,  69  So.  438;  Los  Angeles 
Terminal  Land  Co.  v.  Muir,  136 
Cal.  36,  68  Pac.  310;  Judd  v.  Rob- 
inson, 41  Colo.  222,  124  Am.  St. 
Rep.  128,  14  A.  &  E.  Ann.  Cas. 
1018,  92  Pac.  724;  Hays  v.  St. 
Paul  M.  E.  Church,  196  111.  633, 
63  N.  E.  1040;  Peck  v.  Conway, 
119  Mass.  546;  Watrous  v.  Allen, 
57  Mich.  362,  58  Am.  Rep.  363,  24 
N.  W.  104;  Coughlin  v.  Barker, 
46  Mo.  App.  54;  Condert  v.  Sayre, 
46  N.  J.  Eq.  386,  10  Atl.  190; 
Phoenix  Ins.  Co.  v.  Continental 
Ins.  Co.,  87  N.  Y.  400;  Smith  v. 
Graham,  217  N.  Y.  655,  112  N.  E. 
1076;  Clark  v.  Martin,  49  Pa. 
289. 

6.  Bryan  v.  Grosse,  155  Cal. 
132,  99  Pac.  499;  Codman  v.  Brad- 
ley, 201  Mass.  361,  87  N.  E.  591, 
Ericksen  v.  Tapert,  172  Mich.  457, 
138  N.  W.  330;  Supplee  v.  Cohen, 
81  N.  J.  Eq.  500,  86  Atl.  366; 
Cotton  V.  Cresse,  80  N.  J.  Eq.  540, 


§  394] 


Equitable  Restrictions. 


1427 


That  the  grantor  of  land  is  expressly  given  a 
right  of  forfeiture  in  case  of  the  breach  by  the  grantee 
of  a  provision  restrictive  of  the  use  to  be  made  of  the 
land  does  not  of  itself  j^reclude  the  enforcement  of  such 
a  provision  by  injunction."^ 

The  courts  do  not  favor  restrictions  upon  the  utiliza- 
tion of  land,  and  that  a  particular  mode  of  utilization  is 
excluded  by  agreement  must  clearly  appear.'"  If  this 
does  appear,  the  fact  that  the  person  seeking  relief  can- 
not show  that  such  user  of  the  land  will  cause  him  actual 
damage  is  usually  immaterial,^''  though  it  may  happen 
that  the  particular  violation  of  the  agreement  sought  to 
be  restrained  is  so  unimportant  that  equity  will  not  inter- 
vene.'^^ The  court  will  give  relief  when  necessary  by 
a  mandatory  as  well  as  by  a  prohibitory  injunction.'^ ^ 


49  L.  R.  A.  (N.  S.)  357,  85  Atl. 
600;  Trustees  of  Columbia  Col- 
lege V.  Lynch,  70  N.  Y.  440;  Lewis 
V.  Gollner,  129  N.  Y.  227,  26  Am. 
St.  Rep.  516,  29  N.  E.  81. 

7.  Weil  V.  Hill,  193  Ala.  407, 
69  So.  438;  Watrous  v.  Allen,  57 
Mich.  362,  58  Am.  Rep.  363,  24 
N.  W.  104;  Hopkins  v.  Smith,  162 
Mass.  444,  38  N.  E.  1122;  Wilson 
V.  Massachusetts  Institute  of 
Technology,  188  Mass.  565,  75  N. 
E.  128;  Hayes  v,  W^verly  &  P. 
R.  Co.,  51  N.  J.  Eq.  345,  27  Atl. 
648;  Ball  v.  Milliken,  31  R.  I. 
36,  37  L.  R.  A.  (N.  S.)  623,  76  Atl. 
789;  Clark  v.  Martin,  49  Pa.  289; 
Duester  v.  Alvin,  74  Ore.  544,  145 
Pac.  660. 

7a.  Gerling  v.  Lain,  269  111. 
337,  109  N.  E.  972;  Brandenburg 
V.  Lager,  272  111.  622,  112  N.  E. 
321;  Van  Duyn  v.  H.  S.  Chase  & 
Co.,  149  Iowa,  222,  128  N.  W. 
300;  Melson  v.  Ormsby,  169  Iowa, 
522,  151  N.  W.  817;  Casterton  v. 
Plotkin,  188  Mich.  333,  154  N. 
W.   151;    Godley  v.  Weisman,   133 


Minn.  1,  L.  R.  A.  1917A,  333,  157 
N.  W.  711,  158  N.  W.  333;  Scharer 
V.  Pantler,  127  Mo.  App.  433,  105 
S.  W.  668;  Fortesque  v.  Carroll. 
76  N.  J.  Eq.  583,  75  Atl.  923; 
Goater  v.  Ely,  80  N.  J.  Eq.  40,  82 
Atl.  611;  Hunt  v.  Held,  —  Ohio 
— ,  107  N.  E.  765;  McCloskey  v. 
Kirk,  243   Pa.   319,  90  Atl.  73. 

7b.  Hartman  v.  Wells,  257  111. 
167,  100  N.  E.  500;  Morrow  v. 
Hasselman,  69  N.  J.  Eq.  612,  61 
Atl.  369;  Supplee  v.  Cohen,  80 
i\.  J.  Eq.  83,  83  Atl.  373;  Spilling 
V.  Hutcheson,  111  Va.  179,  68  S. 
E.  250.  See  Doherty  v.  Allman, 
3  App.  Cds.  at  p.  720,  per  Lord 
Cairns. 

7c.  Barton  v.  iSlifer,  72  N.  J. 
Eq.  812,  66  Atl.  899;  Smith  v. 
Spencer,  81  N.  J.  Eq.  389,  87  Atl. 
158;  Forsee  v.  Jackson,  192  Mo. 
App.   408,   182   S.   W.   783. 

7d.  Hartman  v.  Wells,  257  111. 
167,  100  N.  E.  500;  Codman  v. 
Bradley,  201  Mass.  361,  87  N.  E. 
591;  Stewart  v.  Finkclstone,  206 
Mass.  28,   28   L.  R.   A.  (N.  S.)   634, 


1428  Real  Peopeety.  [§  395 

It  has  been  decided  in  one  state  that  a  covenant 
restrictive  of  the  use  of  land  constitutes  a  property 
right  in  the  land  restricted,  so  as  to  entitle  the  bene- 
ficiaries under  the  covenant  to  compensation  if  such 
land  is  devoted  to  a  public  use  which  involves  a  vio 
lation  of  the  covenant,^  and  in  another  state  the  interest 
of  one  entitled  to  enforce  such  a  covenant  has  been 
regarded  as  a  right  of  which  he  cannot  be  deprived  by 
legislation  without  compensation.^  Elsewhere,  how- 
ever, such  a  covenant  has  been  regarded  as  a  nullity  as 
against  the  state  or  a  state  agency  seeking  to  utilize 
the  land  for  a  public  or  quasi  public  purpose,  with 
the  result  that  a  neighboring  property  owner  cannot 
assert  any  claim  for  damages  in  such  case,  though  the 
public  use  is  of  a  character  which  is  in  terms  excluded 
by  the  covenant/'" 

§  395.  Character  of  agreement.  In  England,  an 
agreement  will  thus  be  enforced  in  equity  against  a 
subsequent  purchaser  or  occupant  only  when  it  is 
restrictive  of  the  use  of  the  land,  and  not  when  it  calls 
for  the  performance  of  some  positive  act  by  the  occu- 
pant   thereof.^^       And    in    the    great    majority    of    the 

138    Am.    St.    Rep.    370,    92    N.    E.  Co.,    92    Ohio    St.    471,    112    N.    E. 

37;    AHen    v.    Barrett,    213    Mass.  507;    U.   S.  v.  Certain  Lands,  112 

36,    99   N.    E.    575;    Compton   Hill  Fed.     622;     Wharton     v.     United 

Imp.  Co.  V.  Strauch,  162  Mo.  App.  States,  153  Fed.  876. 
76,  141  S.  W.  1159;  Maine  v.  Mul-  10.     Havwood      v.       Brunswick 

liken,    176    Mich.    443,    142    N.    W.  Permanent  Benefit  Building  Soc. 

782;    Spilling    v.    Hutcheson,    111  8   J.   B.   Div.   403;    Austerberry  v. 

Va.  179,  68  S.  E.  250.  Corporation    of    Oldham,    29    Ch. 

8.  Flynn  v.  New  York,  W.  &  Div.  750;  London  &  S.  W.  Ry. 
B.  R.  Co.,  218  N.  Y.  140,  112  N.  E.  Co.  v.  Gomm,  20  Ch.  Div.  562.  See 
913.  De  Gray  \:.  Monmouth  Beach  Club 

9.  Riverbank  Improvement  Co.  House  Co.,  50  X.  J.  Eq.  329.  That 
V.  Chadwick,  228  Mass.  242,  117  only  a  restrictive  agreement  will 
N.  E.  244.  thus   be  enforced,  see  also  Miller 

9a.     Doan    v.    Cleveland    Short      v.    Clary,    210    N.    Y.    127,    103    X. 
Line  Ry.  Co.,  92  Ohio  St.  461,  112       E.  1114    {semble). 
N.  E.  505;   Ward  v.  Cleveland  Ry. 


§  395] 


Equitable  Restrictioxs. 


1429 


cases  in  this  country  the  agreement  enforced  has  been 
restrictive.  Thus,  agreements  not  to  use  specified  limd 
for  building/^  or  for  a  particular  business/^  or  for 
other  than  residence  purposes/^  have  been  thus  en- 
forced, as  have  agreements  not  to  build  within  a  cer- 
tain distance  of  the  street/"*  or  to  erect  no  building 
of  less  than  a  certain  cost/^  or  of  a  style  of  construc- 
tion other  than  that  named. ^*^  In  some  cases/"  how- 
ever, an  affirmative  agreement  in  connection  with  the 
land  has  been  regarded  as  within  the  doctrine,  with 
the  effect  that  a  purchaser  from  the  promisor  with 
notice  of  such  an  agreement,  though  he  may  not  be 
personally  liable  for  its  non  performance,  takes  the 
land  subject  to  the  possibility  that  a  court  of  equity 
will  enforce  its  performance,  or  reparation  for  its 
non  performance,  by  a  decree  in  reference  to  the 
land.  So  an  agreement  by  which,  if  one  uses  a  wall 
constructed    by   his    adjoining   owner,   he    is   to   pay  a 


11.  Tulk  V.  Moxhay,  2  Phillips, 
774.  Wood  V.  Cooper  (1894)  3  Ch. 
671;  Herriok  v.  Marshall,  66  :\le. 
435;  Peck  v.  Conway,  119  Mass. 
546;  Lad;l  v.  City  of  Boston,  151 
Mass.  585,  21  Am.  St.  Rep. 
481,  24  N.  E.  858;  Phoe- 
nix Ins.  Co.  V.  Continental  Ins. 
Co.,  87. X.  Y.  400;  Hennen  v.  De- 
veny,  71  W.  Va.  629,  L.  R.  A. 
1917A,   524,  77   S.   E.   142. 

12.  McMahon  v.  Williams,  79 
Ala.  288;  Collins  Mfg.  Co.v.  Marcy. 
25  Conn.  242;  Watrous  v.  Allen, 
57  Mich.  362,  58  Am.  Rep.  363, 
24  X.  W.  104;  Post  v.  Weil,  115 
.\.  Y.  361;  5  L  R.  A.  422,  12  Am. 
St.  Rep.  800,  22  X.  E.  145;  Stines 
V.  Dorman.  25  Ohio  St.  580. 

13.  German  v.  Chapman,  7  Ch. 
Div.  271;  Parker  v.  .Nightingale, 
6  Allen  (Mass.)  341,  83  Am.  Dec. 
632.  Trustees  of  Columbia  Col- 
lege V.  Lynch,   70   N.   Y.   440. 


14.  Manners  v.  Johnson,  1  Ch. 
Div.  673;  Coles  v.  Sims,  5  De  Gex, 
M.  &  G.  1;  Linzee  v.  Mixer,  101 
Mass.  512;  Sanborn  v.  Rice,  129 
Mass.  387;  Ogontz  Land  &  Im- 
provement Co.  V.  Johnson,  168  Pa. 
St.  178,  .31  Atl.  1008;  Branden- 
burg V.  Lager,  272  111.  622.  112 
N.   E.   321. 

15.  Bowes  V.  Law,  L.  R.  9  Eq. 
636.  Page  v.  Murray,  46  X.  J.  Eq. 
325,  19  Atl.  11;  Blakemore  v.  Stan- 
ley, 159  Mass.  6,  33  N.  E.  689. 

16.  Keening  v.  Ayling,  126 
Mass.  404;  Landell  v.  Hamilton, 
177  Pa.  St.  23,  35  Atl.  242;  Clark 
V.   Martin,  49   Pa.   St.   289. 

17.  Flege  v.  Covington  &  C. 
Elevated  R.  &  Transfer  &  Bridge 
Co.,  122  Ky.  348,  121  Am.  St.  Rep. 
463,  91  S.  W.  738;  Bailey  v.  Aga- 
wam  Nat  Bank,  190  Mass.  20,  3 
L.  R.  A.  (X.  S.)  98,  112  Am.  St. 
Rep.    296,    5    A.    &    E.    Ann.    Cas. 


1430  Real  Peopekty.  [§  395 

certain  amount  named,  has  occasionally  been  regarded 
as  enforcible  against  the  land  in  the  hands  of  a  pur- 
chaser with  notice  as  an  equitable  rather  than  a  legal 
claim. ^^  The  adoption  of  this  view,  that  even  an 
affirmative  agreement  may  be  enforced  as  against  a 
purchaser  with  notice,  involves  merely  a  necessity 
of  regarding  such  an  agreement,  if  for  the  payment 
of  money  by  the  promisor  to  the  jDromisee,  as  cre- 
ating an  equitable  lien  or  charge  on  the  lands, ^^  and 
if  for  the  doing  of  another  character  of  act,  as  justif}"- 
ing  a  decree  for  the-  specific  performance  of  the 
agreement.  If  the  agreement  neither  calls  for  the 
payment  of  money  nor  is  of  such  a  character  that 
specific  perfonnance  would  otherwise  be  decreed,  it 
would  appear  to  be  enforceable  in  equity  as  against 
such  a  subsequent  purchaser  to  no  greater  extent  than 
it  is  enforcible  at  law.  Subject  to  such  considerations, 
there  would  appear  to  be  no  objection  to  the  applica- 
tion of  the  doctrine  which  we  are  now  discussing  to 
the  case  of  an  affirmative  agreement,  except  as  the 
particular  court  may  regard  it  as  impolitic  thus  to 
increase  the  burdens  capable  of  imposition  on  land,^° 
According  to  a  few  decisions,  the  agreement,  even 
though  restrictive,  in  order  to  be  thus  enforced  in 
equity  against  a  subsequent  purchaser,  must  ''touch 
and  concern"  land  belonging  to  the  person  in  favor  of 
whom  the  agreement  is  made,  by  tending  to  the*  phys- 
ical advantage  of  such  land,  it  being  insufficient  that 

553,  76  N.  E.  449;  Childs  v.  Boston  18.     Sharp  v.  Cheatham,  88  Mo. 

&  M.  R.,  213   Mass.   91,  99   N.  E.  498,    57    Am.    Rep.    433;    Burr    v. 

957.  Carson  v.  Percy,  57  Miss.  97;  Lamaster,  30  Neb.  688,  9  L.  R.  A. 

Burbank    v.    Pillsbury,    48    N.    H.  637,  27  Am.  St.  Rep.  428,  46  N.  W. 

475;   Gould  v.  Partridge,  52  N.  Y.  1015.    See  ante.  §  393,  notes  82-85. 

App.  Div.  40,  64  N.  Y.  Supp.  870  19.     Post,  §  661. 

(semble) ;    Hlnchman    v.    Consol.  20.     See   article    by   Charles    I. 

Arizona    Smelting    Co.,    198    Fed.  Giddings,    Esq.,    In    5    Harv.    Law 

^07   (semble).     As  adverse  to  the  Rev.   at  p.  279;    editorial  note  in 

enforcement  of   such  an  affirma-  18  Harv.   Law  Rev.   at  p.   214;    3 

tive  covenant,  see  Miller  v.  Clary,  Pomeroy,  Eq.  Jur.  §  1295. 
210  N.  Y.  127,  103  N.  E.  1114. 


§  395]  Equitable  Eestkictions.  1431 

it  increases  its  value  indirectly  by  preventing  the  use 
of  the  adjoining  property  for  a  competing  business.^ ^ 
That  such  an  agreement  preventive  of  competition 
may  be  enforced  against  a  subsequent  purchaser  with 
notice  is  however  recognized  or  assumed  in  a  number 
of  cases.--  And  admitting  that  the  agreement  is  valid 
between  the  original  parties  thereto,  the  fact  that  its 
chief  operation  is  to  restrain  competition  appears  to 
be  hardly  a  sufficient  reason  for  permitting  a  subse- 
quent purchaser  with  notice  of  the  agreement  to  use 
the  land  in  contravention  thereof.^ ^ 

Statute  of  Frauds.     The  right  thus  to  enforce 

an  agreement  in  equity  against  a  subsequent  pur- 
chaser is,  at  least  in  some  jurisdictions,  independent 
of  the  mode  or  incidents  of  its  execution.  It  need  not 
be  a  covenant,  that  is,  an  agreement  under  seal,  and 
it  has  usually  been  regarded  as  sufficient  although  oral 
merely,  or  merely  inferred  from  the  acceptance  of  a 
conveyance  containing  such  a  stipulation,  or  from  re- 
presentations made  upon  the  sale  of  land.^^     It  is  to 

21.  Taylor  v.  Owen,  2  Blackf.  ridge,  82  111.  267;  Watrous  v. 
(Ind.)  301  (semble);  Norcross  v.  Allen,  57  Mich.  362,  58  Am.  Rep. 
James,  140  Mass.  188,  2  N.  E.  946;  363,  24  X.  W.  104;  Hodge  v.  Sloan, 
Brewer  v.  Marshall,  18  X.  J.  Eq.  107  N.  Y.  244,  1  Am.  St.  Rep.  816, 
337,  19  N.  J.  Eq.  557;  Kettle  River  17  N.  E.  335  (two  judges  dissent- 
R.  Co.  V.  Eastern  Ry.  Co.  of  Minne-  ing) ;  Stines  v.  Dorman,  25  Ohio 
sota;  41  Minn.  461,  6  L.  St.  580;  Middletown,  Town  of,  v. 
R.  A.  Ill,  43  X.  W.  469;  Tardy  v.  Newport  Hospital,  16  R.  I.  319, 
Creasy,  81  Va.  553  (two  judges  333,  1  L.  R.  A.  191,  15  Atl.  800 
dissenting);  West  Virginia  Rwy.  (semble).  See  Sutton  v.  Head, 
V.  Ohio  River  Pipe  Line  Co.,  22  86  Ky.  156,  9  Am.  St.  Rep.  274, 
W.  Va.  600.     See  Burdell  v.  Gran-  5  S.  W.  410. 

di,  152  Cal.  376,  14  L.  R.  A.  (N.  S.)  23.     See  17  Harv.  Law  Rev.  at 

909,  125  Am.  St.  Rep.  61,  92  Pac.  P   183.  article  by  Prof  J.  B.  Ames. 

1022.  24.     Spicer   v.    Martin,    14   App. 

22.  Catt  v.  Tourle,  4  Ch.  App.  Cas.  12;  Renals  v.  Colishaw,  9  Ch. 
654;  Holloway  v.  Hill  (1902),  2  Div.  125,  11  Ch.  Div.  866;  Mac- 
Ch.  612;  Robinson  v.  Webb,  68  Ala.  kenzie  v.  Childers,  43  Ch.  Div. 
397,  77  Ala.  176;  McMahon  v.  Wil-  265;  Nottingham  Patent  Brick  & 
Hams,  79  Ala.  288;   Frye  v.  Part-  Tile  Co.  v.   Butler,   15  Q.  B.   Div. 


1432  Real   Property.  [§  395 

be  regretted  that  the  judicial  expressions  to  this  effect 
have  not  been  accompanied  by  any  explanation  of 
why  the  agTeenient  is  not  within  the  operation  of  the 
Statute  of  Frauds,  a  question  as  to  which  there  ap- 
l)ears  to  be  considerable  room  for  discussion. 

In  two  or  three  states  the  view  has  been  asserted 
that  an  agreement  such  as  we  are  now  considering 
involves  the  creation  of  an  interest  in  land,  within 
the  local  equivalent  of  the  first  section  of  the  English 
statute.^"  But  in  view  of  the  fact  that  that  statute 
contains  a  separate  provision  in  reference  to  proof  of  the 
creation  of  an  express  trust,  it  might  perhaps  be 
questioned  whether  the  first  section  was  intended  to 
apply  to  the  creation  of  any  equitable  interest,  and 
a  like  view  might  perhaps  be  taken  of  similar  lan- 
guage occurring  in  a  state  statute.  There  is  one  ex- 
Illicit  decision  that  an  agreement  restrictive  of  the 
use  of  land  is  not  an  agreement  for  the  sale  of  an 
interest  in  land  within  the  fourth  section  of  the  stat- 
ute,^^  and  this  seems  a  rational  view,  but  a  contrary 
view  is  asserted  in  another  state. -^  There  are  two 
decisions  denying  that  an  agreement  that  land  shall 
not  be  utilized  in  a  particular  way  is  one  not  to  be 
performed   within   one   year   from   the   making  thereof 

261,   16   Q.    B.    Div.   778;    Wliitney  25.     Wolfe    v.    Frost,    4    Sandf. 

V,    Union      Railway    Co.,    11     Gra\  C^i.    (N.   Y.)    72;     Rice    v.   Roberts, 

(Mass.)    359,    71    Am.    Dec.    715;  24   Wis.    461;    McCusker   v.   Goode, 

Whittenton    Mfg.    Co.    v.    Staples.  185     Mass.     607,     71     N.     E.     76; 

164   Mass.    319;    Allen   v.   City    of  Sprague    v.    Kimball,    213    Mass. 

Detroit,    167    Mich.    464,    36    L.   R.  380,  100  N.  E.  622.     And  see  Tib- 

A.    (N.    S.)    890,    133    N.    W.  317;  betts    v.    Tibbetts,    66    N.    H.    360, 

Tallmadge    v.    East    River    Bank,  20  Atl.   979. 

26    N.   Y.    105;    Lewis   v.    Gollner,  26.     Hall  v.  Solomon,  61   Conn. 

129    N.    Y.    227,    26    Am.    St.    Rep.  476,  29  Am.   St.   Rep.  218,  23  Atl. 

516,   29   N.   E.   81;    Equitable  Life  876. 

Ass'n    Soc.    of    United    States    v.  27.     Sprague    v.     Kimball,    213 

Brennan,  148  N.  Y.   661,  43  N.  5.  Mass.  380,  4  L.  R.  A.  962,   100  N. 

173;  Lennig  v.  Ocean  City  Ass'n,  E.    622;    Clanton    v.    Scruggs,    95 

41    N.    J.    Eq.    606,    56    Am.    Rep.  Ala.  279,  10  So.  757. 
16,  7  Atl.  491. 


<§  395]  Equitable  REsxRirTioxs,  1433 

Avitliiu  the  statute,  one  decision  bein^-  based  on  the 
theory  that  it  may  be  performed  within  a  year,-*^  and 
the  other  upon  the  theory  that  the  provision  does  not 
apply  to  a  negative  contract.-'^  It  is,  however,  difficult 
to  see  how  such  a  contract  not  limited  in  time,  is 
capable  of  performance  in  a  year,  nor  is  it  clearly 
apparent  that  a  negative  contract  does  not  call  for 
performance  to  the  same  extent  as  a  positive  contract, 
for  the  purpose  of  this  provision.  In  those  jurisdic- 
tions, however,  in  which  this  provision  as  to  agreements 
not  to  be  performed  within  a  year  has  been  held  not 
to  apply  to  a  contract  based  on  an  executed  considera- 
tion, or  to  one  which  is  to  be  entirely  performed  by 
one  party  within  the  year,  an  agreement  incidental  to 
the  sale  or  conveyance  of  land  would  ordinarily  not 
fall  within  its  operation.'^"- 

Conceding  that  otherwise  the  agreement  in  refer- 
ence to  the  land  would  be  within  the  Statute  of  Frauds, 
it  has  been  suggested  that  a  restrictive  agreement, 
although  oral,  might  on  occasion  be  enforced  on  the 
theory  of  part  performance,"^^  on  that  of  fraud-*-  or  on 
that  of  estoppel."'"  It  would  seem,  however,  somewhat 
difficult  to  bring  every  case  of  an  oral  restrictive 
agreement  within  the  operation  of  either  one  of  these 
doctrines.  In  case,  for  instance,  one  conveying  land 
to  another  orally  agrees,  at  the  time  of  executing  the 
conveyance,  not  to  make  a  particular  use  of  land  re- 
tained by  him,  there  would  appear  to  be  no  room  for 
the  application  of  the  doctrine  of  ])art  performance, 
nor  any  sufficient  basis  for  a  finding  of  either  estoppel 

28.  Hall  V.  Solomon,  61  Conn.       ing    Co.,    15.5    Cal.    402,    101    Pac. 
476,   29  Am.    St.   Rep.   218,  23   Atl.       297. 

876.  31.     Williams,    Vendor    &    Pur- 

29.  Leinau       v.       Smart.       11       chaser  (2nd  Ed.)  494. 

Humph.    (Tenn.)   308.  32.     Hubbell  v.  Warren,  8  A'.len 

30.  That    a    verbal    agreement       (Mass.)    173. 

not    to    use    land    for    a    certain  33.     Lennig  v.  Ocean  City  Ass'n, 

purpose   is  within  this  provision,       41  X.  J.  Eq.  606,  56  Am.  Rep.  16, 
see  Long  V.  Cramer  Meat  &  Pack-       7    Atl.    491;    Woods   v.    Lowrance, 


1434  Real  Property.  [§  396 

or  frand.^^  The  fact  that  one  purchasing  land  mis- 
takenly supposes  that  an  incidental  stipulation  entered 
into  by  the  vendor  is  legally  enforcible,  should  hardly 
operate  to  estop  the  vendor  from  asserting  the  con- 
trary, even  though  it  appears  that  the  former  would 
not  have  made  the  purchase  had  he  been  correctly 
informed.^^ 

§  396.  Theory  of  enforcement.  While  the  right  to 
enforce  in  equity  an  agreement  or  covenant  of  a  restric- 
tive character  as  against  a  subsequent  purchaser  with 
notice  thereof  is  generally  recognized,  the  judicial  ex- 
pressions as  to  the  principle  underlying  such  enforce- 
ment are  singularly  inharmonious.  In  some  cases,  the 
doctrine  appears  to  be  regarded  as  merely  an  equitable 
application  of  a  legal  rule  that  the  burden  as  well  as  the 
benefit  of  a  covenant  which  touches  and  concerns  the 
land  will  run  with  the  land,  a  view  which  is  necessarily 
restricted  to  such  states  as  have  adopted  the  rule  that 
the  burden  of  a  covenant  runs  with  the  land  at  law.^" 
In  a  considerable  number  of  cases  the  right  of  enforce- 
ment appears  to  be  based  on  the  theory  that,  in  the 
view  of  a  court  of  equity,  an  easement  in  the  land 
is     created     by     an     agreement     of    this     character.^^'^ 

49  Tex.   Civ.  App.  542,  109  S.  W.  Me.   242,   88  Atl.   859;    Dawson   v 

418.  Western   M.   R.    Co.,    107    Md.    70, 

34.  See  Sprague  v.  Kimball,  14  L.  R.  A.  (N.  S.)  809,  126  Am. 
213  Mass.  380,  100  N.  E.  622.  St.  Rep.  337,  15  Ann.  Cas.  678,  68 

35.  See  Clanton  v.  Scruggs,  95  Atl.  301;  Hogan  v.  Barry,  i43 
Ala.  279,  10  So.  757.  Mass.  538,  10  N.  E.  253;   Ladd  v. 

36.  Ante,    §    390.  City  of  Boston,  151  Mass.  585,  21 

37.  McMahon  v.  Williams,  79  Am.  St.  Rep.  481,  24  N.  E.  858; 
Ala.  288;  Weil  v.  Hill,  193  Ala.  Chase  v.  Walker,  167  Mass.  293, 
407,  69  So.  438;  Tinker  v.  Forbes,  45  N.  E.  916;  Brown  v.  O'Brien, 
136  111.  221,  26  N.  E.  503;  Hutch-  168  Mass.  484,  47  N.  E.  195; 
inson  v.  Ulrich,  145  111.  336,  21  L.  Riverbank  Improvement  Co.  v 
R.  A.  391,  34  N.  E.  556;  Clark  Chadwick,  228  Mass.  242,  117  N. 
V.  McGee,  159  111.  518,  42  N.  E.  E.  244;  Allen  v.  City  of  Detroit, 
965;  Herrick  v.  Marshall,  66  Me.  167  Mich.  464,  133  N.  W.  317,  36 
435;    Leader   v.   La  Flamme,    111  L.    R.    A.    (N.   S.)    890;    Bowen  v. 


§  396] 


Equitable  Restrictions. 


1435 


This  latter  theory  has  been  adopted  by  the  later 
English  cases,^^  and  has  been  there  applied  to  the 
extent  of  holding  that,  as  a  legal  easement  requires 
a  dominant  as  well  as  a  servient  tenement,^^  so  an  *' equi- 
table easement,"  requires  a  dominant  tenement,  that  is, 
such  an  easement  can  be  created  by  a  restrictive  cove- 
nant only  if  the  covenantee  has  an  interest  in  the 
land  sought  to  be  benefitted,  with  the  result  that  if 
the  covenantee  has  not  such  an  interest,  a  purchaser 
from  the  covenantor,  although  taking  with  notice  of  the 
covenant,  is  not  atfected  thereby.^*^ 

The  theory  referred  to,  that  a  restrictive  agree- 
ment operates  to  create  an  easement  for  the  i^urposes 
of  a  court  of  equity,  though  favored  by  the  later 
English  cases,  and  frequently  referred  to  with  ap- 
proval by  most  respectable  American  courts,  is  by  no 
means   entirely  satisfactory.^'^ ^     If   what  is  in  form  a 


Smith,  76  N.  J.  Eq.  456,  74  Atl. 
675;  Trustees  of  Columbia  Col- 
lege V.  Lynch,  70  N.  Y.  440;  Muz- 
zarelli  v.  Hulshizer,  163  Pa.  St. 
643,  30  Atl.  291;  Green  v.  Creigh- 
ton,  7  R.  I.  9. 

38.  The  adoption  of  this  view 
by  the  English  courts  dates  from 
the  dictum,  entirely  uncalled  for, 
of  Jessel,  M.  R.,  in  London  & 
Southwestern  Ry.  Co.  v.  Gomm, 
20  Ch.  D.  562,  that  "the  doctrine 
of  Tulk  V.  Moxliay,  2  Phil.  774, 
rightly  considered,  appears  to  me 
to  be  either  an  extension  in 
equity  of  the  doctrine  of  Spen- 
cer's case  to  another  line  of 
cases,  or  else  an  extension  in 
equity  of  the  doctrine  of  negative 
easements."  See,  in  support  of 
this  view,  editcrial  notes  in^  2S 
Harv.  Law  Rev.  at  p.  201,  31  Id. 
at  p.  S76. 

39.  Ante,  §  348. 

40.  Formby    v.    Barker    (1903), 


2  Ch.  539;  :\lillbourn  v.  Lyons 
(1914),  1  Ch.  34;  Lon:^on  County 
Council  v.  Allen  (1914),  3  K.  B. 
642.  In  the  latter  case  two  of  the 
three  judges  indicate  dissatisfac- 
tion with  the  theory  which  com- 
pelled   such    a    decision. 

Likewise,  on  the  analogy  of 
easements,  it  has,  in  Massachu- 
setts, been  decided  that  the  benefit 
of  a  restrictive  agreement  by  the 
grantee  of  land  would  not  pass  on 
a  subsequent  conveyance  of 
neighboring  land  in  which  the 
promisee  had  merely  an  undivid- 
ed interest,  since  a  contrary  view 
would  involve  in  effect  a  reser- 
vation of  an  easement  in  favor  of 
a  person  not  of  a  party  to  the  con- 
veyance, that  is,  the  owner  of  the 
other  undivided  interest.  Hazen 
v.  Mathews,  184  Mass.  388,  68  N. 
E.    838. 

40a.  The  covenants  thus  en- 
forced against  an  assignee  of  the 


l-tSO  Eeal  Property.  [§  396 

contract  not  to  use  tlie  land  in  a  particular  manner 
creates  an  easement  as  to  the  use  of  the  land,  it  should, 
one  would  suppose,  create  it  for  the  purposes  of  a 
court  of  law  as  well  as  of  a  court  of  equity.  It  is 
difficult  to  understand  how  language  which,  when  under 
consideration  in  a  court  of  equity,  is  regarded  as  cre- 
ating an  easement  can,  when  under  consideration  in  a 
court  of  law,  be  regarded  as  creating  a  contract  only.^^ 
It  is  no  doubt  true  that  an  easement  can  be  created  by 
what  are  in  form  words  of  covenant,"'^  but  that  is  by 
reason  of  the  construction  placed  upon  these 
words  as  being  in  effect  words  of  grant,  for  the  pur- 
liose  of  a  court  of  law  as  well  as  of  equity.  It  is 
somewhat  noticeal)le  that  even  courts  which  empha- 
size the  theory  of  "equitable  easement"  for  the  pur- 
pose of  making  effective  a  restrictive  covenant  as 
against  a  subsequent  purchaser  of  the  land,  ordinarily 
regard  words  of  covenant  restrictive  of  the  use  of 
land  as  creating,  for  other  purposes,  merely  a  cove- 
nant.^"^  That  is,  the  courts  ignore  the  possible  operation 
of  such  words  as  creating  an  equitable  easement 
rather  than  a  covenant,  except  when  it  is  convenient  to 
regard  them  as  creating  such  an  easement  for  the  pur- 
])ose  of  making  them  effective  against  a  subsequent 
purchaser. 

The   more   satisfactory  theory,  it   is   conceived,   in 
regard    to   the    enforceability    in    equity   of    restrictive 

covenantor  are,  as  hereafter  stat--  case  of  a  deviation  of  a  few  inches 
ed,  usually  restrictions  upon  the  from    a    building    line,    or    a    re- 
character  or  location  of  the  build-  striction  as  to  the  use  to  be  made 
ing  to  be  erected,  or  business  to  of   the    land,    or   the    cost    of   the 
be  maintained,   on   the   land,   and  building  thereon, 
such  covenants  are,  in  some  of  the  41.     See  the  remarks  of  Wilde, 
cases    last    cited,    said    to    create  J.,    in    Hurd    v.    Curtis,    19    Pick, 
easements  of  light,  air,  and  pros-  (Mass.)    459,   quoted   ante,   §    391, 
pect.    They  are,  however  enforced  note  29. 
even    when    their   violation   could  42.     Ante,  §  361. 
not  involve  any  interference  with  43.     See  1  Tilfany,  Landlord  & 
light,  air,  or  prospect,  as  in  the  Tenant,  §  123. 


<^  396]  Equitable  Eestbictioxs.  1437 

agreements  against  purchasers  with  notice  is  that  equi- 
ty regards  such  an  agreement  as  vesting  in  tlie  prom- 
isee a  right  to  specific  enforcement  by  means  of  an 
injunction  or  otherwise,  not  only  as  against  the  origi- 
nal promisor,  but  also  as  against  a  subsequent  holder 
of  the  property,  if  not  a  purchaser  for  value  without 
notice.^^  If  the  right  to  equitable  relief  could  not  thus 
be  asserted  as  against  a  subse([uent  holder  of  the 
property,  the  result  would  be  that  the  promisee  could 
be  deprived  of  such  right,  in  practically  every  case, 
by  a  collusive  transfer  on  the  i)art  of  the  promisor. 
The  doctrine,  properly  regarded,  appears  to  be  closely 
analagous  to  that  by  which  the  equitable  right  to  spe- 
cific performance  of  a  contract  is  enforced  as  against 
a  subsequent  holder  of  the  property,  not  a  bona  fide 
purchaser  for  value,  by  a  decree  requiring  him  to  make 
a  conveyance  in  conformity  to  the  contract,  as  well  as 
to  the  doctrine  that  a  trust  may  be  enforced  as  against 
a  purchaser  from  the  trustee  under  like  circumstances. 
Sucn  a  right  as  to  the  use  of  land,  created  by  contract 
and  capable  of  enforcement  as  against  a  subsequent 
holder  of  the  land,  resembles  likewise  an  equitable  lien 
created  by  a  contract  subjecting  the  land  to  a  pecuniaiy 
claim  l)y  way  of  security  for  the  claim. 

It  has  in  England  been  decided  that  one  who  ac- 
quires the  land  by  adverse  possession  takes  it  subject 
to  a  restrictive  agreement  to  which  it  was  subject  in  the 
hands  of  the  rightful  owner.^"^     This  decision  appears, 

44.     See  the  discussion  in  Sug-  at  p.   119,   17   Harv.  Law  Rev.  at 

den,  Vendors  &  Purchasers   (14th  p.    415,    21    Id.    139;    De    Gray    v. 

Ed.)   802  et  seq.  Maitland,  Equity  Monmouth  Beach  Club  House  Co., 

165;   articles  by  Prof.  J.  B.  Ames  50    X.    J.    Eq.    329,    24    Atl.    388; 

in  17  Harv.  Law  Rev.  at   p.   174,  Cotton    v.    Cress3,    80    N.    J.    Eq. 

Lectures   on    Legal   History,   381;  540,  85  Atl.  600.  49  L.  R.  A.  (X.  S.) 

by  T.  Cyprian  Williams,  Esq.,  in  357. 

51  Solicitors'  Journal  141;   by  Pro-  45.     Re    Xisbet    &    Potts'    Con- 

fesor  Harlan  F.   Stone,  in   18  Co-  tract    (1905),   1  Ch.   391,    (1906)    1 

lumbia  Law  Rev.  at   p.  291;    edi-  ch.   386. 
torial  notes  in  4  Law  Quart.  Rev. 

2  R.  P.— 16 


1438  Ebal  Pkoperty.  [§  397 

to  some  extent  at  least,  to  be  based  on  tbe  theory,  re- 
ferred to  in  the  preceding  paragraph,  that  the  right 
created  by  such  an  agreement  is  in  the  nature  of  an 
easement.  Attention  has  been  called  by  an  able  writer^'' 
to  the  difficulty  of  harmonizing  this  decision,  which  in 
effect  regards  an  equitable  claimant  as  unaffected  by 
the  fact  that  the  holder  of  the  legal  title  is  barred 
under  the  statute  of  limitation,  with  the  rule*'  that  a 
cestui  que  trust  is  barred  when  the  holder  of  the  legal 
title  is  barred,  and  suggestions  have  been  made  that 
in  view  of  this  decision,  the  rule  that  a  cestui  que  trust 
is  barred  when  the  holder  of  the  legal  title  is  barred 
must  be  regarded  as  having  been  superseded  as  a 
result  of  the  language  used  in  the  Statute  of  Limita- 
tions now  in  force  in  that  country.*^ 

§  397.  Persons  subject  to  restriction.  So  far  as 
the  agreement  which  is  sought  to  be  enforced  against  a 
subsequent  holder  of  the  land  concerns,  as  is  almost  in- 
variably the  case,  the  use  to  be  made  of  the  land,  it  is 
a  question  of  primary  importance  whether  the  agree- 
ment concerns  the  use  to  be  made  thereof  by  the  prom- 
isor only,  or  the  use  to  be  made  thereof  by  others  as 
well.  A  use  by  a  subsequent  purchase  cannot  well  be 
restrained  if  the  agreement  was  intended  to  prevent 
the  promisor  only  from  making  such  use.*''  What  the 
intention  was  in  this  regard  is  a  question  of  construc- 
tion, but  since  it  is  ordinarily  immaterial  to  the 
promisee  who  may  make  any  particular  use  of  the 
property,  the  presumption  would  seem  to  be,  in  the 
absence  of  a  clear  showing  to  the  contrary,  that  such 
a   use   by   any  person   whomsoever   is   intended,^''    and 

46.  T.  Cyprian  Williams,  Esq.,  49.  Kemp  v.  Bird,'  5  Ch.  Div. 
in  51  Solicitors'  Journal  at  pp.  974;  Re  Fawcett  v.  Holmes,  42 
141,  155.  Ch.   Div.   150;    Brigg  v.  Thornton 

47.  Ante.   §   103,   note   4.  (1904),  1  Ch.  386;   Pythian  Castle 

48.  Lightwood,  Time  Limits  of  Ass'n   of    Sacramento    v.    Daroux, 
Actions,    80;    article    by    Charles  172  Cal.  510,  157  Pac.  594. 
Sweet,  19  Juridicial  Review,  67.  50.     See  HoJge  v.  Sloan,  107  N. 


§  398] 


Equitable  Eestrictions. 


1439 


an  intention  to  this  effect  would  appear  to  be  clearlT 
indicated  by  the  fact  that  the  agreement  in  terms 
binds  the  promisor's  as;?igns,^^  or  that  the  agreement 
is  in  an  impersonal  form,  that  the  land  shall  not  be 
used  in  a  particular  way. 

§  398.  Notice.  As  above  stated,  a  restrictive  agree- 
ment is  enforced  in  equity  against  a  subsequent  pur- 
chaser only  when  he  takes  with  notice  thereof.^-  Such 
notice  may  be  either  actual  or  constructive,^^  and  the 
purchaser  is,  in  accordance  with  the  general  rule  as 
to  notice,-^^  charged  with  notice  of  anything  showing 
or  imposing  such  a  restriction  which  may  be  con- 
tained in  a  conveyance  in  the  chain  of  title  under 
which  he  claims,""  and  whether  such  a  conveyance  is 
recorded    is    necessarily    immaterial    in    this    regard.^^ 


Y.  244,  1  Am.  St.  Rep.  816,  17  N. 
E.  335;  Fuller  v.  Arms,  45  Vt.  400. 

51.  Holloway  Brothers  v.  Hill 
(1902),  2  Ch.  618.  See  Hartz  v. 
Kales  Realty  Co.,  178  Mich.  560, 
146  N.  W.  160;  Pavkovich  v. 
Southern  Pac.  R.  Co.,  150  Cal. 
39,  87  Pac.  1097. 

In  Los  Angeles  Terminal  Land 
Co.  V.  Muir,  136  Cal.  36,  68  Pac. 
308,  it  appears  to  be  considered 
that  if  the  restriction  does  not 
in  terms  purport  to  bind  assigns 
or  grantees,  it  cannct  be  enforced 
against  them.  And  see  Pythian 
Castle  Ass'n  of  Sacramento  v. 
Daroux,  172  Cal.  510,  157  Pac. 
594;  Wood  V.  Stehrer,  119  Md. 
143,  86  Atl.  128. 

52.  Carter  v.  Williams,  L.  R.  9 
Eq.  678;  Nottingham  Co.  v.  Butler, 
16  Q.  B.  Div.  778,  787;  Rowell  v. 
Satchell  (1903)  2  Ch.  212;  Judd 
V.  Robinson,  41  Colo.  222,  124  Am. 
St.  Rep.  128,  14  Ann.  Cas.  1018, 
92  Pac.  724;   Washburn  v.  Miller, 


117  Mass.  376;  Moller  v.  Presby- 
terian Hospital,  65  N.  Y.  App.  Div. 
134. 

53.  Wilson  v.  Hart,  1  Ch.  App. 
463;  Spicer  v.  Martin,  14  App. 
Cas.  12;  Patman  v.  Harland,  17 
Ch.  Div.  353. 

54.  Post,  §  572, 

55.  Patman  v.  Harland,  17  Ch. 
Div.  353;  W^iegman  v.  Kusel,  270 
111.  520,  110  N.  E.  884;  Duncan  v. 
Central  Passenger  Ry.  Co.,  85  Ky. 
525,  4  S.  W.  228;  Peck  v.  Conway, 
119  Mass.  546;  Oliver  v.  Kalick, 
223  Mass.  252,  111  N.  E.  879; 
Zoller  V.  Goldberg,  183  Mich.  197, 
149  N.  W.  089;  Wabash,  St.  L.  & 
■P.  Ry.  Co.,  24  Mo.  App.  199; 
Brewer  v.  Marshall,  19  N.  J.  Eq. 
537;  Smith  v.  Graham,  217  N.  Y. 
G55,  112  N.  E.  1076*.  See  Norfleet 
V.  Cromwell,  64  N.  C.  1. 

56.  Occasional  statements  that 
the  purchaser  is,  in  the  particular 
.jcase,   charged    with  notice  of  the 

agreement    because    the    convey- 


1440  Eeal   Property.  [§  398 

If,  however,  the  agreement  is  contained  in  a  conveyance 
which  is  not  in  the  chain  of  title,  but  which  was  made 
by  a  prior  owner  of  neighboring  land,  the  question  of 
its  record  may  be  material  for  the  purpose  of  charging 
a  purchaser  with  notice  of  the  agreement,  and  such  may 
also  be  the  case  when  the  agreement  is  not  contained 
in  a  conveyance  of  land,  but  is  incorporated  in  an 
independent  instrument.  The  former  case,  that  of  an 
agreement  contained  in  a  conveyance  not  in  the  chain 
of  title  of  the  person  against  whom  it  is  sought  to  en- 
force it,  is  elsewhere  discussed,^'  and  the  question  of 
the  record  of  an  independent  restrictive  agreement 
will  here  alone  be  referred  to.  Whether  such  an  agree- 
ment is  entitled  to  be  recorded,  so  that  its  record  will 
affect  the  purchaser  wnth  constructive  notice  thereof 
is  obviously  a  question  to  be  determined  by  the  lan- 
guage of  the  state  recording  law.'''* 

In  accordance  with  the  general  equitable  rule  that 
a  purchaser  with  notice  from  a  ])urcliaser  without 
notice  takes  free  of  the  equity,-'^  the  etfect  of  the  ac- 
quisition of  the  property  by  one  having  no  notice  of 
the  restrictive  agreement  is  to  put  an  end  to  the 
enforceability  of  the  agreement  as  against  the  land.'"'^ 

There  are  in  England  occasional  dicta^^  that  a 
bona  fide  ])urcliaser  for  value  of  an  e(|uitable,  as  dis- 
tinguished from  a  legal,  estate,  takes  subject  to  the 
burden  of  a  restrictive  agreement,  the  element  of  notice 

ance  in  his  chain  of  title  in  which  Sjoblom   v.   Mark,   103   Minn.   193. 

it     is     contained     is     of     record.  15  L.  R.  A.    (N.   S.)    1129,   114   N. 

(Schadt    V.    Brill,    173    Mich.    647,  W.  746. 

45   L.   R.   A.    (N.    S.)    726,    139    N.  59.     Post.  §  575. 

W.  878;    :\Iiller  v.  Klein,  177  Mo.  60.     Roak   v.    Davis,    194    Mass. 

App.  557,  160  S.  W.  562;  Bowen  v.  481,    80     N.     E.     690;     Wilkes    v. 

Smith,   76   N.   J.   Eq.   456,  74   Atl.  Spooner  [1911]   2  K.  B.   473. 

675)  appear  to  be  beside  the  mark.  61.     London  &  S.  W.  Rwy.  Co. 

57.  Post,  §  567(d).  v.  Gomm,  20  Ch.  Div.  562;  Rogers 

58.  That  it  is  entitled  to  record  v.  Hosegood  [1900],  2  Ch.  388, 
see  Bradley  v.  Walker,  138  N.  Y.  405;  Osborne  v.  Bradley  [1903], 
291,  33  N.  E.  279;  Boyden  v.  Rob-  2  Ch.  446,  451. 

erts,  131  Wis.  659,  111  N.  W.  701; 


§  399]  Equitable  Restrictions.  1441 

being  thus  niaterijil  only  Avheii  the  agTeement  is  as- 
serted as  against  a  purchaser  of  the  legal  estate.  This 
accords  with  the  rule  generally  stated,  that  the  doc- 
trine of  bona  fide  purchase  for  value  does  not  operate 
to  protect  the  purchaser  of  a  merely  equitable  interest, 
but  the  soundness  of  the  rule  from  the  standpoint  of 
principle  may  be  doubted''-  and,  as  has  been  remarked, 
it  is  difficult  to  see  the  justice  of  exempting  the  bona 
fde  purchaser  of  a  legal  fee  simple  from  the  burden  of 
a  restrictive  covenant  while  not  exempting  such  a  pur- 
chaser of  an  equitable  fee  simple.**^ 

§  399.    Persons  entitled  to  enforce  restriction.    The 

person  with  whom  the  agreement  was  made,  owning 
land  in  the  neighborhood  which  might  be  benefitted  by 
reason  of  the  restriction,  may  no  doubt  proceed  in 
equity  for  its  enforcement.  If  on  the  other  hand  he 
has  no  land  to  be  benefitted  by  the  enforcement  of  the 
restriction,    he    cannot,    by    the    weight    of    authority,^"* 

62.  See  article  by  Professor  Law  Rev.  at  p.  58,  27  Harv.  Law 
J.  B.  Ames,  in  1  Harv.  Law  Rev.  at  p.  493,  16  Mich.  Law  Rev.  at 
at  p.  8,  et  seq.,  Lectures  on  Legal  p.  97.  In  Massachusetts  it  has 
History  p.  263,  et  seq.  heen    decided     that     the    original 

63.  See  article  by  Professor  vendor,  who  has  disposed  of  all 
Ames  in  17  Harv.  Law  Rev.  at  his  land,  may  properly  join  in 
p.  178,  note.  Lectures  on  Legal  a  suit  by  one  of  his  vendaes 
History  at  p.  385.  against  another  to  enforce  a  rt- 

64.  Forman  v.  Safe  Deposit  &  striction.  Riverbank  Improve- 
Trust  Co.,  114  Md.  574,  80  Atl.  ment  Co.  v.  Bancroft,  209  Mass. 
i98;  Genung  v.  Harvey,  79  N.  J.  217,  34  L.  R.  A.  (N.  S.)  730,  95 
Eq.  57,  80  Atl.  955;  St.  Stephens  X.  E.  216.  That  the  heirs  of  a 
Church  V.  Church  of  Transfigura-  promisee  who  disposed  of  all  his 
tion,  201  N.  Y.  1;  Los  Angeles  land  cannot  enforce  the  restric- 
University  v.  Swarth,  107  Fed.  lion,  see  Graves  v.  Deterling,  120 
798,   54   L.   R.  A.   262,  46  C.  C.   A.  N.  Y.  447,  24  N.  E.  655. 

047.      See     Trustees    v.    Lynch,    70  In    England    the    fact    that    the 

N.    Y.    440;    Dana    v.    Wentworth,  promisee  had  parted  with  all  his 

111  Mass.  191.  property    was   considered   not    to 

A  contrary  view  is  adopted  in  preclude  him  from  enforcing  tlio 

Van    Sant    v.    Rose,    260    III.    401,  restriction      when      its      violation 

103  N.  E.  194,  criticized  in  9   111.  subjected   him    to   a   possible    lia- 


1442  Eeal  Property.  [§  399 

obtain  such  relief,  a  view  which  accords  with  the 
general  practice  of  courts  of  equity,  to  give  relief  only 
in  favor  of  one  who  shows  an  interest  in  the  subject 
matter  of  the  suit. 

As  regards  the  right  of  one  claiming  under  the 
person  with  whom  the  agreement  was  made,  to  enforce 
the  agreement,  the  cases  are  usually  to  the  effect  that, 
provided  the  agreement  was  intended  to  benefit  par- 
ticular land  belonging  to  the  promisee,  rather  than  the 
promisee  personally,  and  not  otherwise,  any  pur- 
chaser of  the  whole  or  of  part  of  that  land  is  entitled 
to  enforce  the  agreement  to  the  same  extent  as  the 
promisee  himself  could  have  enforced  it.*^^  In  such 
case  the  benefit  of  the  agreement  passes  as  incident  to 
the  land  which  the  agreement  was  intended  to  benefit, 
in  the  same  manner  as  the  benefit  of  a  covenant  runs 
with  the  land  at  law.^^  The  question  ordinarily  arises 
in  connection  with  a  restrictive  agreement  entered  into 
by  the  grantee  of  land  with  his  grantor,  who  subse- 
quently transfers  adjoining  land,  in  whole  or  in  part,  to 
another,  who  undertakes  to  assert  the  agreement  as 
against  the  original  grantee  or  one  claiming  under  such 
grantee.  In  some  cases  the  fact  that  the  person  with 
whom  the  agreement  was  made  had  at  the  time  neigh- 
boring land  which  might  be  benefitted  by  compliance 
with  the  restriction  appears  to  be  regarded  as  sufficient 
to  show  that  the  agreement  was  intended  to  benefit  the 

bility    for    breach    of   covenant   of  Mass.    381;    Skinner    v.    Shepard, 

title.     Spencer  v.  Bailey,  69  Law  130  Mass.  180;  Beals  v.  Case,  138 

Times.  179.  Mass.   138;    Clapp   v.   Wilder,   176 

65.     Keates  v.  Lyon,  4  Ch.  App.  Mass.  332,  50  L.  R.  A.  120,  51  N. 

218;    Renals    v.    Colishaw,    9    Ch.  E.    692;    De    Gray    v.    Monmouth 

Div.   125,   11   Ch.    Div.    866;    Leek  Beach   Club   House   Co.,   50   N.   J. 

V.   Meeks,  —  Ala.  — ,  74   So.   31;  Eq.    329,    24    Atl.    388;    Equitable 

Berryman    v.    Hotel     Savoy     Co.,  Life  Assur.  Soc.  of  United  States, 

160  Cal.  559,  37  L.  R.  A.   (N.  S.)  v.  Brennin,  148  N.  Y.  661,  43  N. 

5,   17   Pac.   677;    Hay  v.   St.   Paul  E.  173;   Duester  v.  Alvin,  74  Ore. 

M.  E.  Church,   196   111.   633,  63   N.  544,  145  Pac.  660. 

E.    1040;      Sharp    v.     Ropes,    110  66.     Ante,  §  389. 


§  399] 


Equitable  Eestbictions. 


1443 


land,  so  that  it  would  enure  to  a  subsequent  purchaser 
of  a  part  or  the  whole  thereof.''"  In  other  cases  a 
contrary  view  is  taken,  that  the  person  claiming  the 
right  to  enforce  the  restrictive  agreement  as  transferee 
of  land  which  belonged  to  the  promisee  has  the  burden 
of  showing  that  the  agreement  was  intended  to  benefit 
the  promisee's  land  rather  than  the  promisee  per- 
sonally.^^ Adopting  the  latter  view,  it  is  not  entirely 
clear  how  this  intention  may  be  shown.  In  England  and 
in  two  or  three  states  the  rule  appears  to  be  that, 
unless  the  restriction  is  in  aid  of  some  common  plan  or 
general  scheme  of  development,^^  it  must  be  shown  by 
the  language  of  the  instrument  itself  in  which  the 
agreement  appears,^*^   construed  with   reference   to   the 


67.  McMahon  v.  Williams,  79 
Ala.  288.  Leek  v.  Meeks,  —  Ala.  — , 
74  So.  31;  Roberts  v.  Porter,  100 
Ky.  130,  37  S.  W.  485;  Herriek 
V.  Marshall,  66  Me.  435;  Peck  v. 
Conway,  119  Mass.  546  (semble)  ; 
Watrous  v.  Allen,  57  Mich.  362, 
58  Am.  Rep.  363,  24  N.  W.  104; 
Hartwig  v.  Grace  Hospital,  198 
Mich.  725,  165  N.  W.  827;  Post 
V.  Weil,  115  N.  Y.  361,  5  L.  R.  A. 
422,  12  Am.  St.  Rep.  809,  22  N. 
E.  145;  Clark  v.  Martin,  49  Pa. 
289;  Muzzarelli  v.  Holshizer,  163 
Pa.  643,  30  Atl.  291;  Ball  v.  Mul- 
liken,  31  R.  L  36,  37  L.  R.  A.  (N. 
S.)  623,  Ann.  Cas.  1912B,  30,  76 
Atl.  789. 

68.  Keates  v.  Lyon,  L.  R.  4  Ch. 
218;  Berryman  v.  Hotel  Savoy 
Co.,  160  Cal.  559,  117  Pac.  677, 
37  L.  R.  A.  (N.  S.)  5;  Loomis  v. 
Collins,  272  111.  221  111  N.  E.  999; 
Sharp  V.  Ropes,  110  Mass.  381; 
Skinner  v.  Shepard,  130  Mass.  181; 
Lowell  Institute  for  Savings  v. 
Lowell,  153  Mass.  530,  27  N.  E 
518;  Hobart  v.  Weston,  223  Mass. 


161,  111  N.  E.  779;  Coughlin  v. 
Barker,  46  Mo.  App.  54.  Helm- 
eley  v.  Marlborough  House  Co., 
62  N.  J.  Eq.  164,  50  Atl.  14;  Mc- 
Nichol  V.  Towsend,  73  N.  J.  Eq. 
276,  67  Atl.  938,  73  N.  J.  Eq.  276, 
70    Atl.    965. 

69.  Post,  §   400. 

70.  Renals  v.  Colishaw,  9  Ch. 
Div.  125;  Reid  v.  Bickerstaff 
(1909),  2  Ch.  305.  Judd  v.  Robin- 
son, 41  Colo.  222,  124  Am.  St. 
Rep.  128,  92  Pac.  724,  14  Ann. 
Cas.  1018;  Helmsley  v.  Marl- 
borough Hotel  Co.,  62  N.  J.  Eq. 
164,  63  N.  J.  Eq.  804;  Sailer  v. 
Padolski,  82  N.  J.  Eq.  459,  88 
Atl.  967;  Skinner  v.  Shepard,  130 
Mass.  180;  St.  Patricks  Religious 
etc.,  Ass'n   v.  Hale,  227  Mass.    175, 

116  N.  E.  407.  See  Beetem  v. 
Garrison,  129  Md.  664,  99  Atl.  897 ; 
Equitable  Life  Ass'n.  Soc.  of 
United  States  v.  Brennan,  148  N. 
Y.  661.  43  N.  E.  173. 

In   Kiley  v.    Hall,   96   Ohio,   374, 

117  N.  E.  359,  it  was  considered 
necessary,  in  order  to  enable  the 


1444  Real  Property.  [§  399 

surrounding  circumstances,"'  but  occasionally  the  view 
has  been  indicated  that  such  an  intention  may  be  in- 
ferred from  the  surrounding  circumstances  alone,  with- 
out reference  to  whether  the  instrument  contains  any 
indication  of  intention  in  this  regard.'^  Conceding  that 
the  intention  to  benefit  the  land  must  appear  from  the 
instrument  itself  in  which  the  agreement  occurs,  the 
fact  that  the  agreement  is  in  terms  with  the  promisee 
and  his  assigns  would  seem  to  be  sufficient  for  this 
purpose"'^  and  that  the  agreement  was  with  the  i^romisee 
and  his  heirs  has  been  given  this  effects* 

In  England  the  view  has  obtained  that,  although 
the  agreement  was  not  originally  intended  to  benefit 
the  land,  the  promisee  may,  upon  the  subsequent  sale  by 
him  of  the  land,  make  the  agreement  enure  to  the 
l)enefit  of  the  purchaser  by  the  indication  of  an  inten- 
tion to  that  effect,  that  is,  he  may,  as  it  were,  annex 
the  agreement  to  the  land  by  making  it  a  part  of  the 
subject  of  the  sale.''^  Whether  this  power  in  the  prom- 
grantee  of  a  lot  to  enforce  a  re-  ■  Safe  Deposit  &  Trust  Co.,  114  Md. 
s^triction  inserted  in  the  convey-  574,  80  Atl.  298;  Badger  v.  Board- 
ance  of  a  neighboring  lot  from  man,  16  Gray  (Mass.)  559;  JewelJ 
the  common  grantor,  that  the  v.  Lee,  14  Allen  (Mass.)  145,  92 
latter  grantee  had  reason  to  know  Am.  Rep.  744;  Beals  v.  Case,  138 
either  that  the  restriction  in  the  Mass.  138;  Lowell  Institute  for 
deed  to  him  was  intended  for  Savings  v.  Lowell,  153  Mass.  530, 
the  benefit  of  the  owners  of  other  27  N.  E.  518;  Phoenix  Ins.  Co.  v. 
lots,  as  well  as  of  the  grantor  Continental  Ins.  Co.,  87  N.  Y.  400; 
or  that  there  was  a  common  plan  Ball  v.  Mulliken,  31  R.  I.  36,  76 
of  improvement.  Atl.   789.   37   L.   R.   A.   N.   S.   623; 

Hennen  v.  Deveny,  71  W.  Va  629, 


71.  See  Hays  v.  St.  Paul  M. 
E.  Church,  196  111.  633,  63  N.  E. 
1040;  Coughlin  v.  Barker,  46  Mo. 
App.  54;  Clapp  v.  Wilder,  176 
Mass.  332,  57  N.  E.   692,  50  L.   R. 


L.  R.  A.  1917A,  524,  77  S.  E.  142. 
73.     Mann  v.  Stephens,  15  Sim. 

377;   Nlcoll  v  Flenning,  19  Ch.  D. 

258;  Codman  v.  Bradley,  201  Mass. 

361,  87  N.  E.  591.     See  McMahon 
A.  120;  Hennen  v.  Deveny,  71  W.       ^    Williams,  79  Ala.  288. 
Va.   629.  L.   R.   A.    1917A.   524,   77  ,^     iHelmsley    v.    Marlborough 

^-  ^-  ^^'^-  Hotel  Co..  68  X.  J.  Eq.  596,  61  Atl. 

72.     Peabody     Heights     Co.     v.      455. 
Wilson,   82   Md.    186,   36   L.    R.   A.  75.  Renals  v.  Cowlishaw,  9  Ch. 

393,  32  Atl.  386,  1077;   Forman  v.       Div.    125,    11    Ch.    Div.    866.    Cas. 


§  399]  Equitable   Eesteictioxs.  1445 

isee  to  annex  the  agreement  to  the  land  is  to  be 
regarded  as  based  on  an  intention  in  the  promisor  to 
confer  on  him  such  power,  or  is  entirely  independent 
of  the  intention  of  the  promisor,  does  not  clearly  ap- 
\)em',  and  recognition  of  any  such  a  power  ai)pears  to 
be  unnecessary  and  confusing.  As  has  been  remarked 
b}^  a  writer  of  great  discrimination:  ''The  instances 
must  be  rare  in  which  a  promisor,  willing  to  give  the 
promisee  the  power  of  transferring  the  benefit  of  the 
agreement,  would  care  whether  the  power  were  exer- 
cised by  a  double  assignment  of  land  and  agreement  or 
by  the  mere  assignment  of  the  land.  Xor  is  it  easy 
to  see  why  this  distinction  should  be  of  value  to  the 
promisee.  For  if  the  agreement  be  interpreted  in  the 
wider  sense,  as  intended  to  give  the  benefit  to  the 
promisee  and  any  assignee  of  the  land  as  sucli,  a 
promisee,  washing  under  exceptional  circumstances  to 
convey  the  land  without  the  benefit,  could  easily  re- 
lease the  restriction  to  the  land  about  to  be  con- 
veyed."''' This  doctrine  does  not  appear  to  have  been 
adopted  in  this  country. 

There  are  occasional  dicta  to  the  elTect  that,  even 
in  the  absence  of  a  general  plan,''^''  a  restrictive  agree- 
ment may  be  enforced  by  one  who  is  neither  the  orig- 
inal promisee,  nor  a.  successor  in  interest  of  the  latter, 
provided  he  owned  neighboring  land  at  the  time  of  the 
agreement,  and  it  was  the  intention  that  he  should  en- 
joy the  benefit  thereof.'''** 

If  the  agreement  was  for  the  benefit  of  particular 
land,  not  only  a  subse(iuent  grantee  in  fee  of  such 
land,  but  a  lessee  thereof  for  years,  is  entitled  to  assei-t 
the  agreement."" 

489;     Spicer    v.    Martin,    14    App.  76a.     J'omi^  §  400. 

Cas.     12;      Rogers     v.     Hosegood  76b.     Hays    v.    St.    Paul    M.    E. 

(900),  2  Ch.  388,  408;   Nalder  etc.  Church,  196  IH.  63.'i,  63  N.  E.  1040; 

Brewery  Co.  v.   Harraan,  82  Law  Doerr  v.  Cobbs,  146  Mo.  App.  342. 

Times    594.  123  S.  W.  547.     See  editorial  not'i, 

76.     Professor    J.    B.    Ames,    in  12    Columbia   Law   Rev.    158,   and 

17  Harv.  Law  Rev.  174,  Lectures  Post,  §  400,  note     83. 

on  Legal  History,  381.  77.     Taite  v.  Gosling,  11  Ch.   D. 


1446  Real  Peopebty.  [§  400 

The  right  of  a  subsequent  grantee  of  the  land  for 
the  benefit  of  which  the  agreement  was  made  to  assert 
the  agreement  is,  it  has  been  decided,  independent  of 
whether  he  knew  of  its  existence  at  the  time  of  the 
conveyance    to    himJ^ 

An  agreement  restricting  the  use  of  a  particular 
tract  of  land  is  prima  facie  not  to  be  construed  as  in- 
tended to  restrict  the  use  of  one  part  of  the  tract  in 
favor  of  another  part  thereof.  For  instance,  an 
agreement  by  the  grantee  of  land  with  his  grantor 
that  he  will  not  make  a  particular  use  of  the  land  con- 
veyed cannot  ordinarily  be  asserted  by  a  subsequent 
purchaser  of  a  part  of  that  land  as  against  the  owner 
of    another   part.'^^ 

§  400.  Existence  of  general  plan.  The  question  of 
who  may  enforce  a  restrictive  agreement  as  to  the  use 
of  land  has  arisen  most  frequently  in  connection  with 
agreements  entered  into  in  furtherance  of  some  general 
plan  or  scheme  of  improvement  devised  by  the  owner 
of  land  upon  its  division  into  building  lots,  it  being 
intended  that  the  purchasers  of  lots  shall,  for  the 
common  benefit  of  all,  utilize  the  lots  only  in  accord- 
ance with  such  plan.  The  cases  are  to  the  effect  that 
when  such  a  general  plan  exists,  any  purchaser  of  a 
lot  with  knowledge  of  such  plan  may  assert  the 
restrictions  involved  therein  as  against  any  other  pur- 
chaser.^*^    In   spite   of   the   unanimity  with  which   the 

273;    Johnson    v.    Robertson,    156  1,  127  Am.  St.  Rep.  925,  85  N.  E. 

Iowa,  64,  135  N.  W.  585.  687;  Lewis  v.  Ely,  100  N.  Y.  App. 

78.  Rogers  v.  Hosegood  (1900),  Div.  252;  Wright  v.  Pfrimmer,  99 
2  Ch.  388,  407;  Child  v.  Douglas.  Neb.  447,  156  N.  W.  1060;  Contra 
Kay  560,  571.  Winfield  v.  Henning,  21  N.  J.  Eq. 

79.  King  V.  Dickson,  40  Ch.  D.  188;  Boyden  v.  Roberts,  131  Wis. 
596;  Graham  v.  Hite,  93  Ky.  474,  659,  111  N.  W.  701  (two  judges 
20   S.  W.   506;    Jewell  v.   Lee,   14  dissenting). 

Allen    (Mass.)    145,    92    Am.    Dec.  80.     Spicer   v.   Martin,   14   App. 

744;     Dana     v.     Wentworth,     111  Cas.  12;  Mackenzie  v.  Childers,  43 

Mass.  291;   Korn  v.  Campbell,  192  Ch.  Div.  265.  Alderson  v.  Cutting, 

N.    Y.    490,    37    L.    R.    A.    (N.    S.)  163    Cal.    503,   126   Pac.    157;    Mc- 


§  4()0]  Equitable  Kestrictioiss.  1447 

courts,  when  the  matter  has  been  presented,  have  ac- 
cepted this  doctrine,  there  is  a  singular  and  disap- 
pointing lack  of  explanation  of  the  principle  on  which 
it  is  to  be  regarded  as  based.  As  between  two  pur- 
chasers of  different  lots  at  different  times,  the  right 
of  the  later  purchaser  to  enforce  the  agreement  of 
the  earlier  purchaser  is  readily  explicable  on  the 
theory  that  the  existence  of  the  general  plan  shows  an 
intention  that  such  agreement  shall  enure  to  the  bene- 
fit of  all  the  lots  not  then  disposed  of  by  the  common 
vendor,  so  that,  upon  the  subsequent  sale  of  one  of 
these  latter  lots,  the  purchaser  thereof  will,  in  ac- 
cordance with  the  rule  before  stated, ^^  be  entitled  to 
enforce  the  agreement.  But  this  does  not  explain  how 
an  earlier  purchaser  is  enabled  to  enforce  a  restrictive 
agreement  entered  into  at  a  later  date  by  a  later  pur- 
chaser. An  agreement  cannot  well  pass  on  a  transfer  of 
land  unless  there  is  an  agreement  then  in  existence  to 
pass.^-   In   some   of   the   states   the   right   of  the   prior 

Neil  V.   Gary,  40  App.  D.  C.   397,  v.  Lottman,  —  Tex.  Civ.  — ,   171, 

46  L.  R.  A.   (N.  S.)   1113;   Parlter  171  S  W.  27;    Boyden  v.  Roberts, 

V.    Nightingale,    6    Allen    (Mass.)  131    Wis.    659,    111    N.    W.    701. 

341,   83   Am.   Dec.    632;    Evans   v.  It    has    been    held    that    if    one 

Foss,    194   Mass.   513,   9   L.   R.   A.  includes   in   a   common   plan   not 

(N.  S.)   1039,  80  N.  E.  587;   Allen  only  his  own  land,  but  adjoining 

v.  Barrett,  213  Mass.  36,  30  Ann.  land  which  he  does  not  own,  and 

Cas.   820,  99   N.   E.   575;    Allen  v.  he     subsequently     acquires     this 

Detroit,  167  Mich.  464,  36  L.  R.  A.  land,  a  purchaser  of  lots  therein 

(N.  S.)   890,  133  N.  W.  317;   Reed  from  him  takes  it  subject  to  the 

V.  Hazard,  187  Mo.  App.  547,  174  plan.     Schmidt  v.  Palisade  Supply 

S.  W.  Ill;  Winfield  v.  Henning  21  Co.,  —  N.  J.  Ch.  — ,  84  Atl.   807. 

N.   J.   Eq.   133;    De  Gray   v.   Mon^  The  equitable  obligation  in  effect 

mouth  Beach  Club  House  Co.,  50  attaches   to   the  land   when   it   is 

N.  J.  Eq.   329,   24  Atl.  388,  67   N.  .acquired  by  him.     See  13  Colum- 

J.  Eq.  731,  63  Atl.  1118;  Mulligan  bia  Law  Rev.  at  p.  77. 

V.  Jordan,  50  N.  J.  Eq.  363,  24  Atl.  81.     Ante,   §    399. 

543;  Hyman  v.  Tash  —  (N.  J.  Eq.)  82.     Summers  v.  Beeler,  90  Md. 

— ,  71  Atl.  742;  Tallmadge  v.  East  474,  45  Atl.  19,  48  L.  R.  A.  54,  78 

River  Bank,  26  N.  Y.  105;  Barron  Am.  St.  Rep.  446;  Mulligan  v.  Jor- 

V.  Richard,  8  Paige   (N.  Y.)    105;  dan,  50  N.  J.  Eq.  363.  24  Atl.  543; 

Wallace    v.    Clifton    Land    Co.,    92  Helnisley   v.   Marlboro   Hotel   Co.. 

Ohio  St.  349,  110  N.  E.  94;  Hooper  62    N.    .1.    Eq.    164.    63    N.    J.    Eq. 


1448  Real  Pkopekty.  [§  4U0 

purchaser  to  enforce  the  subset|uent  agreement 
of  another  purchaser  might  he  supported  on 
the  ground  that  the  beneficiary  of  a  contract, 
although  not  a  party  thereto,  can  maintain  suit 
thereon. ^^  In  jurisdictions  which  do  not  concede  such 
a  right  to  the  beneficiary  of  a  contract,  the  view  might 
perhaps  be  adopted  that  what  the  prior  purchaser  in 
such  case  is  allowed  to  enforce  is,  not  the  agreement 
entered  into  by  the  subsequent  purchaser,  but  an 
agreement  to  the  same  elTect,  entered  into  by  the 
common  vendor,  either  expressed,  or  inferred  from  the 
existence  of  a  common  plan  of  improvement.  That  is, 
if  diiferent  persons  purchase  lots  from  A  and  there 
is  a  common  plan  of  improvement  brought  by  A  to 
the  knowledge  of  each  purchaser,  this  evidences  an 
agreement  by  A  with  each  purchaser  that  the  lots 
subsequently  to  be  sold  by  him  shall  not  be  utilized 
in  violation  of  such  plan,  and  this  agreement  can  be 
enforced  as  against  any  subsequent  purchaser  (with 
notice  thereof)  from  A,  without  regard  to  the  agree- 
ment in  this  regard  between  such  subsequent  pur- 
chaser and  A.  It  must  be  conceded,  however,  that 
such  a  theory  has  but  rarely  been  judicially  asserted,^"* 
and  the  courts,  in  adjudicating  the  right  of  purchasers 

S04,  52  Atl.  1132;   Leaver  v.  Gor-  plained     upon     established     prin- 

man,    73    N.    J.    Eq.    129,    67    Atl.  ciples,   but  must    be   accepted   as 

111;    McNichol    v.    Townsend,    73  a  further  extension  of  equity  jur- 

N.  J.  Eq.  276,  70  Atl.  965;    Dosrr  isprudence,  whereby  in  a  limited 

V.  Cobbs,  146  Mo.  App.  342,  123  S.  class    of    cases    the    interests    of 

W.   547;    Wright  v.   Pfrimmer,   99  beneficiaries    of    a    contract    are 

Xeb.  447,  156  N.  W.  1060.  recognized  and  protected." 

83.     See      Pollock,      Contracts.  8^-     It  is  more  or  less  clearly 

(Williston's  Edition)    at  p.  237  et  indicated    in     Talmadge     v.    East 

ggq_  Eivei-    Bank,   26   X.   Y.   105;    Equi- 

In   a   discriminative   note   in   12  table    Life   Insurance   Coc.  v.  Bren- 

Columbia  Law  Rev.  at  p.  160,  this  nan,  148  N.  Y.  661,  43  N.  E.  173 ; 

theory   is  adopted  to  explain  the  Lawrence  v.  Woods,  54  Tex.  Civ. 

reciprocal  rights  of  the  purchas-  App.   233,   118   S.    W.   551;    Spicer 

ers  under  a  general  plan,  it  being  v.    Martin,    14    App.    Cas.    2.      See 

said   that  the   results  reached   by  5  Harv.  Law  Rev.  at  p.  283,  article 

the  courts  "cannot  be  entirely  ex-  by  Charles  I.  Giddings.  Esq. 


§    4(J(Jj  EQUITABLE     IlESTlilCTIOXS.  144*J 

under  a  comiiioii  plan  to  enforce  restrictions  as  be- 
tween themselves,  base  this  right  in  terms  not  upon  the 
implication  of  an  agreement  by  the  common  vendor, 
but  upon  the  express  agreements  entered  into  by  the 
purchasers  themselves.  Furthermore  the  Statute  of 
Frauds  might  possibly  operate  to  deprive  of  legal  ef- 
fectiveness an  agreement  so  implied  from  oral  state- 
ments as  to  a  general  plan.  Another  explanation 
which  has  been  given  of  the  rights  of  enforcement  as 
between  various  purchasers  is  that  the  equity  "springs 
from  the  presumption  that  each  purchaser  has  paid 
an  enhanced  price  for  his  property,  relying  on  the 
general  plan,  by  which  all  the  property  is  to  be  sub- 
jected to  the  restricted  use,  being  carried  out,  and 
that  while  he  is  bound  by  and  observes  the  covenant, 
it  would  be  inequitable  to  him  to  allow  any  other 
owners  of  lands,  subject  to  the  same  restrictions,  to 
violate  it."^^  And  it  has  also  been  said  that  in  such 
case  the  covenant  is  enforceable  by  any  grantee  against 
any  other  upon  the  theory  that  there  is  a  mutuality  of 
covenant  and  consideration  which  binds  each,  and 
gives  to  each  the  appropriate  remedy.^''' 

The  question  of  the  existence  of  a  general  plan  is 
one  of  fact,  to  be  determined  with  reference  to  the 
particulars  and  conditions  of  the  laying  out  and  sale  of 
the  lots,  as  indicated  either  verbally  or  in  writing.^^  That 
the  vendor  retains  adjoining  property  without  himself 

85.  De  Gray  v.  Monmouth  necessarily  requires  and  imports 
Beach   Club   House  Co.,   50    N.   J.       reciprocity  of  obligation. 

Eq.   329,   24   Atl.   388,    per   Green,  87.     See   Hano   v.    Bigelow,    155 

V.   C.  Ma.ss.  341,  29  N.  E.  628;   Allen  v. 

86.  Korn  v.  Campbell,  192  N.  Barrett,  213  Mass.  36,  99  N.  E. 
Y.  490,  37  L.  R.  A.  (N.  S.)  1,  85  r.75;  Sprague  v.  Kimball.  213 
N.  E..  689,  per  Werner,  J.  And  Mass.  380,  100  N.  E.  622;  Barton 
see  Parker  v.  Nightingale,  6  y.  Slifer,  72  N.  J.  Eq.  812,  66  Atl. 
AJlen  (Mass.)  241.  ^99;    Foreman  v.  Sadler,  114  Md. 

So  in  Spicer  v.  Martin,  14  App.  574,  80  Atl.  298;  Be  Birmingham 
Cas.  12,  Lord  Macnaghten  says  &  District  Land  Co.,  (1893),  1  Cli. 
that    the    community    of    interest      342. 


1450 


Real.  Peopekty. 


[§  400 


entering  into  any  agreement  similar  to  that  which  he 
exacts  from  purchasers  has  been  regarded  as  tending 
to  show  the  absence  of  a  general  plan  enuring  to  the 
benefit  of  all  the  purchasers.««  That  similar  agree- 
ments were  exacted  of  a  considerable  portion  of  the 
purchasers  does  not  of  itself  show  the  existence  of  a 
general  plan.^**  On  the  other  hand  the  fact  that  agree- 
ments are  not  exacted  of  a  portion  of  the  purchasers 
has  been  decided  not  to  show  the  non  existence  of 
a  general  plan.^°  The  fact  that  a  like  agreement  was 
exacted  from  all  of  the  various  purchasers  has  been 
regarded  as  showing  the  existence  of  a  general  plan,^i 


88.  Keates  v.  Lyon,  4  Ch.  at  p. 
225;  Osborne  v.  Bradley  (1903),  2 
Ch.  at  p.  454;  Sharp  v.  Ropes, 
110  Mass.  381.  Compare  Se  Bir- 
mingham &  District  Land  Co., 
(1893),  1  Ch.   342. 

89.  Leaver  v.  Gorman,  73  N. 
J.  Eq.  129,  67  Atl.  Ill;  McNichol 
V.  Townsend,  73  N.  J.  Eq.  276,  67 
Atl.  938;  McNeil  v.  Gary,  40  App. 

D.  C.  397,  46  L.  R.  A.  (N.  S.)  1113; 
Summers  v.  Beeler,  90  Md.  474,  48 
L.  R.  A.  54,  78  Am.  St.  Rep.  446. 

45  Atl.    19;    Coughlin   v.    Barker, 

46  Mo.  App.  54. 

90.  Leader  v.  La  Flamme,  11 
Me.  242.  88  Atl.  859;  Velie  v. 
Richardson,  126  Minn.  334,  148  N. 
W.  286;  Hano  v.  Bigelow,  155 
Mass.  341,  29  N.  E.  628;  Bacon 
V.  Sandberg,  179  Mass.  396,  60  X. 

E.  936;  Sargent  v.  Leonardi.  223 
Mass.  556,  112  N.  E.  633;  Allen 
V.  Detroit,  167  Mich.  464,  36  L. 
R.  A.  (N.  S.)  890,  133  N.  W.  317; 
Chopin  V.  Dougherty,  165  111.  App. 
426. 

The  exaction  of  different  agree- 
ments from  the  various  pur- 
chasers   does   not   tend    to    show 


a  common  plan.  Webber  v. 
Landrigan,  215  Mass.  221,  102  N. 
PJ.  460;  Clark  v.  McGee,  159  111. 
518,  42  N.  E.  965;  Helmsley  v. 
Marlborough  Hotel  Co.,  62  N.  J. 
Eq.   164,   50   Atl.   14. 

That  in  some  conveyances 
there  are  restrictions  additional 
to  those  which  occur  in  all  the 
conveyances  does  not  show  the 
non  existence  of  a  general  plan. 
Evans  v.  Foss,  194  Mass.  513,  9 
L.  R.  A.  (N.  S.)  1039,  11  Ann. 
Cas.  171,  80  N.  E.  587;  Allen  v. 
Barrett,  213  Mass.  36,  Ann.  Cas. 
1913E,  820,  99  N.  E.  575.  Nor  is 
this  shown  by  lack  of  exact  uni- 
formity in  the  restrictions  in  the 
different  conveyances.  Hart  v. 
Ruter,  223  Mass.  207,  111  N.  E. 
1;  Morrow  v.  Hasselman,  69  N. 
J.  Eq.  612,  61  Atl.  369;  Coates 
V.  Cullingford,  147  App.  Div.  39, 
131  N.  Y.  S.  700;  Hooper  v.  Lott- 
man,  —  Tex.  Civ.  — ,  171  S.  W. 
270. 

91.  Fete  v.  Foerstel,  159  Mo. 
App.  75,  139  S.  W.  820;  Alderson 
V.  Cutting,  163  Cal.  503,  126  Pac. 
157    {semble);    Hano   v.   Bigelow, 


<^  400]  Equitable   Restrictions.  1451 

but  a  contrary  view  has  also  been  asserted.^^  A  com- 
mon plan  cannot  be  shown,  as  against  one  who  pur- 
chased without  knowledge  of  any  restriction,  by  evi- 
dence that  after  his  purchase  the  neighboring  lots  were 
sold  by  the  common  vendor  subject  to  a  particular 
restriction.*^"' 

That  a  building  line  appeared  on  a  recorded  ])lat 
of  property  has  been  referred  to  as  indicating  that 
there  was  a  general  plan  in  this  regard,  subject  to 
which  each  purchaser  of  a  lot  acquired  title. ^^  On  the 
other  hand  the  appearance  of  such  a  line  on  a  plat 
has  been  regarded  as  insufficient  to  show  a  general 
plan.^° 

Restrictions  imposed  in  accordance  with  a  general 
plan,  like  other  restrictions,*^*'  are  enforceable  only  as 
against  purchasers  with  notice  thereof,*^'  and  a  pur- 
chaser with  notice  from  a  purchaser  without  notice 
takes  free  therefrom.^*  A  purchaser  is,  it  has  been 
decided,  not  charged  with  notice  of  a  general  plan  by 
the  uniformity  of  construction  of  buildings  on  other 
lots  sold  by  the  same  vendor.-'^  A  purchaser  can  ob- 
viously not  be  charged  with  notice  of  a  general  plan, 
or  affected  thereby,  if  his  purchase  was  prior  to  the 
establishment   of   such   plan,^ 

155  Mass.   341,  29  N.   E.  638   (sem-  319,  90  Atl.  73. 

ble);    McNeil    v.    Gary,      40    App.  93.     Ante,  §  398. 

Dist.  Col.  397,  46  L.  R.  A.  (N.  S.)  97.     Roak   v.    Davis,    194    Mass. 

1113;     Wright    v.     Pfrimmer,     99  481,    80    N.    E.    690;     Hyman    v. 

Neb.  447,  156  N.  W.  1060.  Tash    (N.   J.   Eq.),  71  Atl.  742. 

92.  MuUigan   v.   Jordan.   50   N.  98.     McCuster     v.     Goode,     185 
J.   Eq.   363,   24  Atl.   543;    Roberts  Mass.  607.  71  N.  E.  76. 

V.  Lombard,  78  Ore.  100,  152  Pac.  99.     Bradley  v.  Walker,  138  N. 

499.  Y.   291,   33   N.   E.   1079,  overruling 

93.  Lambrecht  v.  Gramlich,  187  dictum     in     Tallmadge     v.     East 
Mich.  251,  153  N.  W.  834.  River    Bank,    26    N.    Y.    105,    111; 

94.  Loomis  v.  Collins,  272   111.  Casterton    v.    Plotkin,    188    Mich. 
221,    111    N.    E.    999.      See    Oliver  £33,  154  N.  W.  151. 

V.   Kalick,   223   Mass.    252,   111   N.  1.     Casterton     v.     Plotkin,     188 

E.   879.  Mich.   333,   154   N.    W.   151. 

95.  McCloskey  v.  Kirk,  243  Pa. 


1452  Eeal  Property.  [§  401 

In  England  the  doctrine  of  a  general  plan  has 
been  applied  in  connection  with  leases  of  flats  in  an 
apartment  building,  with  the  result  that  the  lessee  of 
a  flat,  whose  written  and  printed  lease  shows  that  the 
whole  building  was  used  or  intended  to  be  used  for 
residential  flats,  and  imposes  certain  regulations  upon 
the  lessee  in  accordance  with  this  intended  use,  is  en- 
titled to  an  injunction  against  the  lessor,  seeking  to 
utilize  the  balance  of  the  building  for  other  than  resi- 
dential purposes.^ 

§  401.  Defenses  to  enforcement.  The  right  to 
enforce  a  restrictive  agreement  may  be  lost  by  laches  or 
acquiescence,-^  especially  when  this  results  in  the  mak- 
ing of  expenditures  by  defendant.^  And  if  the  promisee 
or  his  successor  in  title,  by  his  conduct,  in  any  way 
induces  a  violation  of  the  agreement,  he  cannot  ordi- 
narily complain  thereof.'^  That  the  agreement  has  but 
a  limited  time  to  run  has,  in  connection  with  other 
circumstances,^  been  regarded  as  a  consideration  ad- 
verse to  its  enforcement. 

2.  Hudson  v.  Cripps  (18D6),  1  143  Pa.  487,  22  Atl.  832,  24  Am. 
Ch.    265;    Alexander   v.    Mansions       St.  Rep.   567. 

Proprietary,   16   Times  Law   Rep.  4.     Bridgewater    v.    Ocean    City 

431;   Gedge  v.   Bartlett,  17  Times  Ass'n,    85   N.    J.    Eq.    379,    96   Atl. 

Law  Eep.  43;    Jaegei    v.  Mansions,  905;    Smith   v.    Spencer,   81   N.    J. 

Limited,  87  Law  Times,  690.  Eq.   389,  87  Atl.   158;   Whitney  v. 

3.  Leaver  v.  Gorman,  73  N.  J.  Union  Railway  Co.,  11  Gray 
Eq.  129,  67  Atl.  Ill;  Sayers  v.  (Mass.)  359,  367;  Kelsey  v.  Dodd. 
Collyer,   28   Ch.   Div.   103.  o2  L.  J.  Ch.  34. 

A    delay    of    ten    weeks    before  5.     Stott    v.    Avery,    156    Mich, 

consulting    an    attorney    was    re-  674,    121   N.  W.    825;   Union   Trust 

garded    as    not    necessarily    pre-  "S:  Realty  Co.   v.   Best,  160  Cal.  263, 

eluding    relief,    no    prejudice    re-  ^16      Pac.      737.      De      Gama      v. 

suiting  to  defendant.     Stewart  v.  r)'Aquila,  —  X.  J.  Ch.  — ,  101  Atl. 

Finkelstone,   206   Mass.   28,   92   N.  1028. 

E.   37.     And    see   Woodbine   Land  6.     Loud    v.     Prendergast,     206 

&  Improvement  Co.  v.  Riener,  —  Mass.   122,  92  N.   E.   40;    Page  v. 

N.    J.   Eq.   — ,   85   Atl.    1004;    Star  Murray,  46  N.    J.  Eq.  325,    19  Atl. 

Brewery  v.  Primas,   163    111.   652,  11;   McClure  v.  Leaycraft,  183  N. 

45  N.  E.  145;  Orne  v.  Fridenburg,  Y.  36,  5    Ann.    Cas.   45,   75   N.  E. 


§  401] 


Equitable   Restrictions. 


1453 


In  the  case  of  restrictions  imposed  in  pursuance 
of  a  general  plan,  that  the  originator  of  the  plan,  the 
common  grantor,  acquiesces  in,  that  is,  fails  to  take 
legal  action  to  prevent,  substantial  infringements 
of  the  plan  by  some  of  his  grantees,  has  been  regarded 
as  showing  an  abandonment  by  him  of  the  plan,  pre- 
cluding him  from  subsequently  enforcing  the  restriction 
as  against  others.'  And  one  to  whom  he  conveys  a 
lot  subject  to  such  a  common  plan  of  restriction  has 
occasionally  been  regarded  as  precluded  from  enjoining 
the  violation  of  the  restriction  if  he  acquiesced  in  a 
violation  thereof  by  another  which  substantially  af- 
fected his  property,^  though  his  failure  to  object  to 
a  violation  by  the  owner  of  one  lot  does  not  affect  his 
right  to  object  to  a  violation  by  another,  if  the  former 
violation,  by  reason  of  the  distance  of  the  lot,  or  for 
some  other  reason,  did  not  affect  the  enjoyment  of  his 
lot.^      In    one   or  two    states   the   acquiescence   by   one 


961;    Page    v.    Murray,    46    N.    J. 
Eq.   325,   19  Atl.   11. 

7.  Scharer  v.  Pantler.  127  Mo. 
App.  433,  105  S.  W.  668;  Chelsea 
Land  &  Improvement  Co.  v. 
Adams,  71  N.  J.  Eq.  771,  66  AtL 
180,  14  Ann.  Cas.  758 ;  Ocean  City 
Land  Co.  v.  Weber,  83  N.  J.  476. 
91  Atl.  600;  Roper  v.  Williams, 
Turn.  &  E.  18.  Peck  v.  Matthews, 
L.  R.  3  Eq.  515;  Sobey  v.  Sains- 
bury  (1913),  2  Ch.  513. 

But  his  acquiescence  in  viola- 
tions of  a  like  covenant  in  deed.s 
of  neighboring  lots  has  been  hel'l 
not  to  prevent  his  enforcement 
of  the  covenant,  if  these  viola- 
tions occurred  before  the  covenant 
was  made.  Sherrard  v.  Murphy, 
193  Mich.  352,  159  N.  W.  524. 

8.  Curtis  V.  Ruben,  244  111.  88, 
91  N.  E.  84;  Ewertsen  v.  Gersten- 
berg,  186  111.  344,  57  N.  E.  1051, 
21  L.  R.  A.  310;  Helmsley  v.  Marl- 

2  R.  P.— 17 


borough  Hotel  Co ,  62  N.  J.  Eq. 
164,  50  Atl.  14,  63  N.  J.  Eq.  804, 
52  Atl.  1132;  Meany  v.  Stork,  81 
N.  J.  Eq.  210,  86  Atl.  398;  Ocean 
City  Ass'n  V.  Chalfant,  65  N.  J. 
Eq.  156,  55  Atl.  801,  1  A.  &  E. 
Ann.  Cas.  601. 

9.  Alderson  v.  Cutting,  163  Cal. 
503,  126  Pac.  157;  Johnson  v. 
Robertson.  156  Iowa.  64,  135  N.  W. 
585;  Barton  v.  Slifer,  72  N.  J.  Eq. 
812.  66  Atl.  899.  Bowen  v.  Smith, 
76  X.  .1.  Eq.  456,  74  Atl.  675;  Row- 
land v.  Miller,  139  X.  Y.  93,  22 
L.  R,  A.  22,  34  X.  E.  765;  McGuire 
v.  Caskey,  62  Ohio  St.  419,  57  X. 
E.  53;  Payson  v.  Burnham,  141 
Mass.  547.  6  X.  E.  708;  Sayles  v. 
Hall,  210  Mass.  281,  96  X.  E.  712; 
Schadt  v.  Brill,  173  Mich.  647. 
139  X.  W.  878.  45  L.  R.  A.  (X.  S.) 
726;  Stewart  v.  Stork,  181  Mich. 
408,   148  N.  W.   393    (srmble). 


1454  Real  Propekty.  [§  401 

grantee  in  the  violation  of  the  common  restriction  by 
another,  even  though  such  violation  be  substantial, 
does  not,  it  seems,  preclude  the  former  from  sub- 
sequently asserting  the  restriction  as  against  a  third 
,i»rantee,^"  wliile  in  England  the  view  has  been 
adopted  that,  in  order  tliat  acquiescence  in  other  vio- 
lations shall  preclude  equitable  relief,  such  violations 
must  have  been  of  a  character  which  would  prevent 
the  attainment  of  the  purpose  which  it  was  sought  to 
attain  by  the  execution  of  the  agreement,  that  is,  uni- 
formity in  the  improvement  of  the  various  lots,  or 
the  preservation  of  the  general  character  of  the 
property  considered  as  a  whole. ^^ 

Acquiescence  in  a  breach  of  a  minor  character 
would  not,  in  any  state,  it  seems  probable,  constitute 
grounds  for  denying  relief  against  a  breach  of  a 
much  more  serious  character,^-  and  likewise  former 
breaches  and  acquiescence  therein  have  been  regarded 
as  insufficient  grounds  for  withholding  relief  when 
they  resulted  from  a  mistaken  construction  of  the 
agreement.^^ 

One  cannot  obtain  relief  in  equity  against  the 
violation  of  a  restrictive  agreement  entered  into  in 
pursuance  of  a  general  plan  if  he  himself  is  guilty  of 

10.  Bacon  v.  Sandberg,  179  ing  Ocean  City  Ass'n  v.  Chalfant, 
Mass.  396.  60  N.  E.  936.  Codnian  v.  65  N.  J.  Eq.  156,  1  Ann.  Cas.  601, 
Bradley,  179  Mass.   396,  60  N.   E.       55   Atl    801. 

936;  Andre  v.  Donovan,  198  Mich.  12.     See    Richards   v.    Revitt,   7 

256,  164  N.  W.  543;  O'Gallagher  v.  Ch.  Div.  224;   Meredith  v.  Wilson, 

Lockhart,   263   111.  489,   105  N.  E.  69   Law  Times   336.   Seawright  v. 

295,  52  L.  R.  A.  (N.  S.)  1044.    And  Blount,  139  Ga.  323,  77  S.  E.  152; 

see   Misch  v.   Lehman.   178   Mich.  Newberry   v.    Barkalow,   75   N.    J. 

225,    144   N.   W.   556;    Lattimer  v.  Eq.  128,  71  Atl.  752.    And  see  Ball 

Livermore,  72  N.  Y.  174;  Yeomans  v.  Milliken,  31  R.  I.  36,  37  L.  R. 

V.  Herrick,  178  Mo.  App.  274,  165  A.    (N.   S.)    623.  Ann.   Cas.   1912B, 

S.  W.  1112.  30,  76  Atl.  789. 

11.  German  v.  Chapman,  7  Ch.  13.  Right  v.  Winters,  68  N.  J. 
Div.  271;  Knight  v.  Simmonds  Eq.  252,  59  Atl.  770;  Brigham  v. 
(1896),  2  Ch.  295.  See  note  in  17  Mulock  Co..  74  N.  J.  Eq.  287,  70 
Harv.  Law  Rev.  at  p.  138  criticiz-  Atl.    185.      And    see    Stewart    v. 


§  401] 


Equitable   Kestkictions. 


1455 


a  substantial  breach  of  tlie  same  restriction.^'*  But  the 
fact  that  the  plaintiff  has  himself  committed  a  minor 
breach  of  the  agreement  will  not  disentitle  him  to  an 
injunction  against  a  breach  by  another  of  considerable 
magnitude.  ^''^ 

While  the  original  promisee  may  release  the  re- 
stricted land  from  the  burden  of  the  restriction,  so 
long  as  he  is  the  only  one  interested  in  the  observance 
thereof,  he  cannot  so  do  to  the  detriment  of  one 
claiming  under  him,  who  shares  with  him  the  right 
to  assert  the  restriction.^^ 

If,  by  reason  of  the  course  of  action  pursued  by 
the  complainant,  or  of  his  predecessor  in  title,  the 
character  of  the  neighborhood  has  been  so  altered  as 
to  render  impossible  the  attainment  of  the  purjDose 
which  originally  dictated  the  making  of  the  restrictive 
agreement,    equity    will    not    enforce    the    agreement.^'' 


Finkelstone,  206  Mass.  28,  28 
L.  R.  A.  (N.  S.)  634,  138  Am.  St. 
Rep.    370,    92    N.    E.    37. 

14.  Curtis  V.  Rubin,  244  III. 
88,  91  X.  E.  84;  Kneip  v.  Schroe- 
der,  255  111.  621,  99  N.  E.  617; 
Compton  Hill  Improvement  Co. 
V.  Tower,  158  Mo.  282,  59  S.  W. 
239;  Loud  v.  Pendergast,  206 
Mass.  122,  92  N.  E.  40;  Olcott  v. 
Sheppard  K.  &  Co.,  96  N.  Y.  App. 
Div.  281,  89  N.  Y.  Supp.  201.  Sut- 
clifEe  V.  Eisele,  62  X.  J.  Eq.  222, 
50  Atl.  Rep.  69;  Smith  v.  Spencer, 
81  N.  J.  Eq.  389,  87  Atl.  158. 

15.  Western  v.  MacDermott,  L. 
R.  2  Ch.  72;  Meredith  v.  Wilson, 
69  Law  Times  336;  Hooper  v. 
Bromet,  89  Law  Times  37;  Bacon 
V.  Sandberg,  179  Mass.  396,  60  X. 
E.  936;  Stewart  v.  Finkelstone, 
206  Mass.  28,  28  L.  R.  A.  (N.  S.) 
634,  ]38  Am.  St.  Rep.  370,  92  N. 
E.  37;  Morrow  v.  Hasselman,  69 
N.    J.    Eq.    612,    61   Atl.   369.      Hy- 


man  v.  Tash  (N.  J.  Eq.),  71  Atl. 
742;  McGuire  v.  Caskey,  62  Ohio 
St.  419,  57  N.  E.  53;  Adams  v. 
Howell,  58  Misc.  435,  108  N.  Y. 
Supp.  945;  Tripp  v.  O'Brien,  57 
111.  App.  407. 

16.  Mackenzie  v.  Childers,  43 
Ch.  D.  265;  Johnson  v.  Robertson, 
156  Iowa,  64,  135  N.  W.  585;  Spahr 
V.  Cape,  143  Mo.  App.  114,  122  S. 
W.  379;  Coudert  v.  Sayre,  46  X. 
.7.  Eq.  386.  Bowen  v.  Smith,  76 
X.  J.  Eq.  456,  74  Atl.  675;  Duester 
V.  Alvin,  74  Ore.  544,  145  Pac. 
660.  And  see  Landell  v.  Hamil- 
ton,  177    Pa.   23,   35    Atl.   242. 

17.  Bedford  v.  British  Museum, 
2  Myl.  &  K.  552;  Star  Brewery 
V.  Primas,  163  111.  652,  45  X.  E. 
145;  Ewertsen  v.  Gerstenberg,  186 
111.  344,  51  L.  R.  A.  310,  57  X. 
E.  1051;  Page  v.  Murray,  46  X.  J. 
Eq.  32.5,  19  Atl.  11.  Compare  Hen- 
nen  v.  Deveny,  71  W.  Va.  629, 
L.  R.  A.  1917A,  524.  77  S.   E.   142. 


1456  Real  Propeety.  [§  401 

Thus  in  a  leading  English  case  it  was  decided  that  one 
who  had,  for  the  protection  of  the  outlook  from  his 
mansion  house,  required  one  to  whom  he  sold  neigh- 
boring property  to  enter  into  an  agreement  as  to  the 
mode  of  improving  the  property  sold,  could  not,  after 
having  torn  down  his  mansion  house,  obtain  an  in- 
junction against  a  breach  of  the  agreement.^^  And 
it  is  apparently  on  this  theory  that  a  restrictive 
agreement  has  occasionally  been  regarded  as  un- 
enforcible  after  the  promisee  had  sold  neighboring 
property  free  from  any  such  restriction,  it  being  con- 
sidered that  by  the  making  of  such  sales  he  in  effect 
made  the  agreement  useless  for  the  purpose  of  pre- 
serving the  character  of  the  neighborhood.^'*  Such  is 
apparently  the  extent  to  which,  in  England,  a  change 
in  the  character  of  the  neighborhood,  subsequent  to 
the  making  of  the  agreement,  is  regarded  as  operating 
to  prevent  the  enforcement  of  the  agreement,  that  is, 
the  change  in  the  neighborhood  has  this  effect  if,  and 
only  if,  it  is  a  result  of  the  course  of  action  pursued 
by  the  complainant  or  his  predecessor  in  interest.^" 
In  this  country,  on  the  contrary,  a  cliange  of  condition 
has  not  infrequently  been  regarded  as  precluding  the 
enforcement  of  the  restrictive  agreement  even  though 
the  change  was  not  the  result  of  the  course  of  action 
pursued  by  the  complainant  or  his  predecessor  in  title. 
In   one  case,   frequently  referred  to,-^   it  was  decided 

18.  Bedford  v.  British  Museum,       senger    Rwy.    Co.,    85    Ky.    525,    4 
2  Myl.  &  K.  552.  S.  W.  228;  Jenks  v.  Pawlowski,  98 

So  it  was  held  that,  if  the  owne.  Mich.  110,  22  L.  R.  A.  863,  39  Am. 

of  a  lot  had,  by  building  a  wall,  St.  Rep.  522,  56  X.  W.  1105. 

rendered    a    restriction    upon    the  20.     Sayers  v.  Collyer,  L.  R.  28 

height   of   buildings    on    the    next  Ch.    D.    103;    Osborne    v.    Bradley 

lot  partially  valueless  to  his  lot,  (1903),  2  Ch.  446.  Craig  v.  Green 

he  could  not  enforce  the  restric-  (1899),    1    Ir.    Ch.    258.      But    see 

tion    so    as   to    prevent   the   con-  dicta  in  Sobey  v.  Sainsbury  (1913), 

struction   of   buildings   no   higher  2   Ch.    513;    German  v.  Chapman, 

than  the  wall.    Landell  v.  Haniil-  7  Ch.  D.  279;  Knight  v.  Simmonds 

ton,  177  Pa.  St.  23,  35  Atl.  242.  (1896),  2  Ch.  297. 

19.  Duncan     v.     Central     Pas-  21.     Columbia  College  y.  Thach- 


§  401]  Equitable   Restrictions.  1457 

that  a  change  of  conditions  which  could  not  have  been 
foreseen  at  the  time  of  the  making  of  the  agreement, 
the  construction  of  an  elevated  railway  in  front  of 
the  restricted  property,  was  a  sufficient  defense  to  the 
enforcement  of  a  restriction,  imposed  for  the  purpose 
of  fitting  the  property  for  high  class  residences;  and 
in  a  number  of  cases  even  an  alteration  in  the  char- 
acter of  the  neighborhood  which  could  have  been  fore- 
seen, such  as  the  encroachment  of  business  upon  a 
residence  neighborhood,  has  been  regarded  as  justify- 
ing the  refusal  of  equitable  relief,^^  especially  when 
the  enforcement  of  the  restriction  would  materially 
injure  the  defendant  without  benefitting  the  complain- 
ant.^^ Such  a  change  in  the  character  of  the  neighbor- 
hood has  however  been  decided  not  to  be  a  defense  to 
the  suit  to  enforce  the  restriction,  if  the  restriction 
continued  to  be  of  value  to  the  property  sought  to  be 
benefitted.^^  It  would  seem  probable  that  the  courts, 
in  regarding  an  alteration  in  the  neighborhood,  whicli 
might    have    been    foreseen,    as    ground    for    refusing 

er,  87  N.  Y.  311,  41  Am.  Rep.  365.  Jackson    v.   Stevenson,   156   Mass.  ^ 

22.  Los  Angeles  Terminal  496,  31  N.  E.  691,  32  Am.  St.  Rep. 
Land  Co.  v.  Muir,  136  Cal.  36,  68  476;  Rowland  v.  Miller,  139  N.  Y. 
Pac.  308;  Kneip  v.  Schroeder,  255  93,  22  L.  R.  A.  182,  34  N.  E.  765; 
III.,  621,  29  Ann.  Cas.  426,  99  N.  E.  McClure  v.  Leaycraft,  183  N.  Y. 
G17;  McArthur  v.  Hood  Rubber  36,  5  Ann.  Cas.  45,  75  N.  E.  961; 
Co.,  221  Mass.  372,  109  N.  E.  162;  Batchelor  v.  Hinkle,  210  N.  Y. 
Amerman  v.  Deane,  132  N.  Y.  243,  104  N.  E.  629;  Page  v.  Murray, 
355,    28    Am.    St.    Rep.    584,    30    N.  46  N.  J.  Eq.  325,  19  Atl.  11. 

E.  741;  McClure  v.  Leaycraft,  183  24.  Codman  v.  Bradley,  201 
N.  Y.  36,  75  N.  E.  961,  5  Ann.  Cas.  Mass.  361,  87  N.  E.  591;  Zipp  v. 
45.  Misch  V.  Lehman,  178  Mich.  Barker,  40  App.  Div.  1,  57  N.  Y. 
225,  144  N.  W.  556.  But  not  the  Supp.  569,  166  N.  Y.  621.  as  ex- 
mere  anticipation  of  such  a  plained  in  Batchelor  v.  Hinkle, 
change.  Evans  v.  Foss,  194  .Mass.  210  N.  Y.  243,  104  N.  E.  629; 
513,  80  N.  E.  587,  9  L.  R.  A.  N.  S.  Brown  v.  Huber,  80  Ohio  St.  183*, 
1039,  11  A.  &  E.  Ann.  Cas.  171;  88  N  E.  322;  Landell  v.  Hamilton, 
Spahr  V.  Cape,  143  Mo.  App.  114,  175  Pa.  327,  34  L.  R.  A.  227,  34 
122  S.  W.  379.  Atl.     663.       See     Witherspoon     v. 

23.  Star  Brewery  Co.  v.  Pri-  Hurst,  88  S.  C.  561,  71  S.  E.  232. 
mas,    163    111.    652,    45   N.    E.    145; 


1458  Real  Peopebty.  [§  401 

equitable  relief,  have  been  moved  by  the  consideration 
that  otherwise  such  restrictions  might  operate  to 
hamper  municipal  development.^^ 

25.     See  14  Columbia  Law  Rev.  is  suggested  that  the  view  refer- 

at  p.  438,  and  the  full  discussion  red  to  may  be  supported  on  the 

of  the  various  New  York  decisions  theory    of    a    presumed    intention 

in    6    Bench    &    Bar    56,    96,    by  to   that   effect  in   the  creation   of 

Adolph    Sieker,    Esq.     In    a   note  the   restriction, 
in  31  Harv.  Law  Rev.  at  p.  877,  it 


CHAPTER  XVI. 

RENT. 

§  402.  The  nature  oi  rent. 

40S.  What  may  be  reserved  as  rent. 

404.  Classes  of  renis. 

405.  Payments  which  are  not  rent. 

406.  The  reservation  of  rent. 

407.  Transfer  of  rights  and  liabilities. 

408.  Death  of  person  entitled. 

409.  Time  at  which  rent  is  due. 

410.  Apportionment  as  to  time. 

411.  Amount  of  the  rent. 

412.  Apportionment  as  to  amount. 

413.  Extinction  or  suspension  of  rent. 

414.  Actions  for  rent. 

415.  Distress  for  rent. 

416.  Lien  for  rent. 

§  402.  The  nature  of  rent.  Rent  may  be  defined, 
in  a  general  way,  as  a  tribute  or  return  of  a  certain 
amount,  which  is  regarded  as  issuing  out  of  the  land, 
as  part  of  its  actual  or  possible  profits,  and  is  payable 
by  one  having  an  estate  in  the  land,  as  compensation 
for  his  use  possession  and  enjoyment  of  the  land,  or 
occasionally,  as  a  charge  on  the  land.  The  word  "rent" 
is  derived  from  "render,"  and  the  name  thus  em- 
phasizes the  distinction  betw^een  rent,  which  is  actually 
rendered  or  paid  by  the  tenant,  and  a  j^rofit  a  prendre, 
which  is  taken  by  the  person  entith^d  thereto,  without 
the  active  intervention  of  the  tenant.^  The  word  is 
used  in  the  law  in  at  least  four  distinct  senses,  which 
it  is  desirable  clearly  to  distinguish.  It  is  in  the  first 
place  used  in  a  general  sense,  to  describe  any  and 
every  tribute  which  may  be  payable  by  one  on  account 
of  an   estate   in   the  land,   as   when  we  say   that  rent 

1.     Co.  Litt.  142a;  Leake,  Prop,      in  Land,  373. 


1460  Real  Peopeety.  [§  403 

is  usually  payable  in  money,  or  rent  is  collectible  by 
distress,  or  rent  must  be  certain  in  amount,  and,  thus 
used,  it  applies  either  to  one  payment  of  tribute  to  be 
made,  one  "installment  of  rent,"  or  to  a  succession 
of  such  payments.  The  word,  when  used  in  this  sense, 
is,  ordinarily  at  least,  not  accompanied  by  any  article. 
In  the  second  place,  the  word  is  used  specifically,  to 
describe  a  particular  payment  of  tribute^  to  be  made  by 
a  tenant  of  particular  land,  or  a  succession  of  such 
payments.  For  instance,  we  may  say  that  the  rent  due 
by  a  tenant  of  certain  land  is  over  due,  meaning  thereby 
that  one  installment  of  the  rent  is  overdue  or  that 
a  number  of  installments  are  overdue.  And  so  we 
speak  of  an  action  having  been  brought  for  "the  rent," 
meaning  thereby  an  action  for  one  installment  or  several 
installments.  The  word  rent  when  used  in  this  sense 
is  ordinarily  preceded  by  the  definite  article.  In  the 
third  place,  the  word  is  used  specifically  to  describe 
the  right  which  a  particular  person  or  persons  may  have 
to  a  succession  of  payments  by  the  tenant  or  tenants 
of  a  particular  piece  of  land,  as  when  we  refer  to  a 
man  as  having  a  rent  or  a  ground  rent,  or  say  that 
the  rent  upon  (issuing  from)  a  certain  piece  of  land 
belongs  to  a  named  individual.  The  word  "rent," 
when  used  in  this  sense,  is  used  with  either  the  definite 
or  indefinite  article.  In  the  fourth  place,  the  word  is 
used  to  designate  sums  paid  as  rent,  the  proceeds,  that 
is,  of  the  payment  of  one  or  more  of  the  periodic  in- 
stallments, as  when  one  speaks  of  applying  the  rent 
in  a  certain  manner,  meaning  thereby  what  is  re- 
ceived on  account  of  rent.  The  word  is  frequently  used 
in  this  sense  in  the  phrase  "rents  and  profits."  Allien 
so  used,  the  word  is  ordinarily  preceded  by  the  definite 
article. 

§  403.  What  may  be  reserved  as  rent.  It  is  said 
by  Coke  that  rent  is  reserved  out  of  the  profits  of  the 
land,2   and  by  Blackstone  that  rent  is  a  profit  issuing 

2.     Co.  Litt.  141b. 


§  403]  Eent.  1461 

out  of  tlie  laiid.-^  The  use  of  the  term  ''profit"  in  this 
connection  has  reference  to  the  connnon  law  theory  of 
rent,  that  it  is  part  of  the  actual  or  possible  profits  of 
the  land,  a  theory  which  was  closely  connected  with 
another  theory,  that  rent,  like  any  other  feudal  service, 
was  something  issuing  from  and  owed  by  the  land 
itself.*  The  chief  consequences  of  the  theory  that  rent 
is  payable  out  of  the  profits  of  the  land  are  that  if 
the  tenant  is  deprived  of  the  opportunity  to  take  the 
profits,  as  by  eviction,  the  landlord's  right  to  rent 
ceases  or  is  suspended,^  and  that  the  rent  is  not  re- 
garded as  an  actual  debt  until  the  profits  have  been 
received  by  the  tenant,  in  the  absence  of  an  express 
provision  to  the  contrary.^ 

The  statement  that  rent  is  a  profit,  or  a  part  of 
the  profits,  issuing  out  of  the  land,. does  not  mean  that 
part  of  the  actual  products  of  the  soil  must  he  delivered 
as  rent.  Tient  is,  in  fact,  usually  reser^^ed  or  made 
payable  in  money,  but  the  tribute  to  be  rendered  may, 
by  the  terms  of  the  reservation,  take  almost  any  form, 
as,  for  instance,  the  delivery  of  a  horse,"  or  of  a  certain 
amount  of  grain  or  cotton,*  the  furnishing  of  board  or 

3.  2  Blackst.  Comm.   41.  Houghton,    1     Lowell,     554,    Fed. 

4.  See  2  Pollock  &  Maitland,  Cas.  No.  6,725;  Wilson  v.  Penn- 
Hist.   Eng.  Law,   126,   129.  sylvania  Trust  Co.,  114  Fed.  742. 

5.  See  Clun's  Case,  10  Co.  126b  But  that  rent  to  become  due  con- 
and  post,   §   413,  notes  93  et   seq.  stitutes   a   present   debt,   see   Ro- 

6.  Litt.,  §  513;  Co.  Litt.  292b;  well  v  .Felker,  54  Vt.  526.  And 
Bordman  v.  Osborn,  23  Pick.  gge  also  Brown  v.  Cairns,  107 
(Mass.)    295;    Thorp    v.    Preston,  ^^.^^,3^  277,  77  N.  W.  478. 

42  Mich.   511,  4   N.  W.   227;    Ord-  ^      Co.  Litt    142a 

way  V.   Remington,   12   R.   I.   .nO,  ^_     ^^[  ^itt.'  142a;   Townsend  v. 


Isf!nborger,  45  Iowa,  670;  Boyd 
V.  McCombs,  4  Pa.  St.  146;  Mc- 
Dougal    V.    Sanders,    75    Ga.    140. 


34  Am.  Rep.  646;  Haffey  v.  Miller 
6   Gratt.    (Va.)    454. 
Consequently  a   claim   for   rent 

subsequently  to  accrue  cannot  bo 

r^..„„.r,f^,i    oc    „    ,i,.;.v,    „„..;v,..f  Frequcntly,  in   this  country,  rent 

presented    as    a    claim    against    a  1  ." 

bankrupt's      estate.        Atkins      v.       consists    of   a    named    portion    of 
Wilcox,    105    Fed.    595;    Ex   parte       the  crop  raised.     See  (oUr,  §  265. 


1462  Real  Peopeety.  [§  404 

support,**  or  the  performance  of  manual  services  on  or 
off  the  land.^« 

It  is  said  hy  Coke  that  "a,  man  upon  his  feoifment 
or  conveyance  cannot  reserve  to  him  parcel  of  the 
annual  profits  themselves,  as  to  reserve  the  vesture  or 
herbage  of  the  land  or  the  like.  For  a  reservation 
ought  not  to  be  a  reservation  of  the  profits  themselves, 
since  these  are  granted,  but  of  a  new  return  out  of  the 
profits  ;"^^  and  his  statement  in  this  regard  has  been 
followed  by  other  English  writers.^-  A  like  view  has 
been  strongly  asserted  in  a  New  Hampshire  decision.^^ 
And  so  it  has  been  said  that  when  the  grantor  or  lessor 
undertakes  to  reserve  as  rent  a  share  of  the  ore  which 
may  be  removed  from  the  land,  this  constitutes  prop- 
erly, not  a  reservation  of  rent,  but  an  exception  of  a 
part  of  the  property  gTanted  or  leased.^^  But  what- 
ever the  rule  may  be  in  this  regard  in  England,  it  is 
not  open  to  question,  in  most  parts  of  this  country, 
that  a  reservation  as  rent  of  part  of  the  crops  to  be 
produced  on  the  land  is  perfectly  valid. 

§  404.  Classes  of  rents.  The  classification  of  rents 
at  common  law  was  based  primarily  upon  the  dis- 
tinction between  a  rent  which  was  reserved  upon  the 
conveyance  or  lease  of  land,  as  a  compensation  to  the 

9.  Baker    v.     Adams,     5    Cush.       Ga.  App.  46,  60  S.  E.  800. 
(Mass.)  99;   Shouse  v.  Krusor,  24  11.     Co.  Litt.  142a. 

Mo.    App.    279;     In    re    Williams'  12.     Sheppard's  Touchstone,  SO: 

Estate,  1  N.  Y.  Misc.  35,  22  N.  Y.  3  Cruise's  Dig.  tit.  28,  c.  1,  §   3; 

Supp.  906.  Comyn,   Landlord   &   Ten.,   95. 

In    Munroe    v.    Syracuse,    Lake  13.     Moulton  v.  Robinson,  27  X. 

Shore  &  Northern  R.  Co.,  200  N.  H.  .550. 

Y.  224,  a  stipulation   for   the   is-  14.     See  Gowan  v.   Christie,  L. 

sue    of   an    annual    railroad    pass  R.  2  H.  L.  Sc.  273,  284,  per  Lord 

was    regarded    as    in    the    nature  Cairns;      Coltness     Iron     Co.     v. 

cf  one  for  rent.  Black,   6  App.   Cas.   315,   335,   per 

10.  Co.  Litt.  96a,  96b;  Doe  d.  Lord  Blackburn;  Greville-Nugent 
Edney  v.  Benham,  7  Q.  B.  976;  v.  Mackenzie  (1900),  App.  Cas. 
Van  Renssalaer  v.  Jewett,  2  N.  h3,  per  Lord  Halsbury;  Fairchild 
Y.    141;     Price   v.     Thompson.    4  v.  FairchUd  (Pa.)  9  Atl.  255. 


§  404]  Ebnt.  1463 

grantor  or  lessor,  and  a  rent  whicli  was  granted  by  the 
owner  of  land  to  another  person,  without  any  transfer 
of  the  land,  being  merely  a  right  to  a  periodical  pay- 
ment secured  on  the  land. 

In  the  former  case,  before  the  Statute  of  Quia 
Emptores,  since  the  conveyance  of  the  land  created  a 
relation  of  tenure,  even  in  the  case  of  the  conveyance  of 
an  estate  in  fee  simple,  the  payment  of  the  rent  re- 
served was  regarded  as  one  of  the  services  incident  to 
that  relation. ^^  Accordingly,  'a  rent  reserved  upon  the 
making  of  a  feoffment,  whereby  the  relation  of  tenure 
was  created,  was  known  as  a  ''rent  service."^*' 

Upon  a  failure  to  perform  this  feudal  service  of 
paying  rent,  the  lord  was,  as  in  the  case  of  default 
in  any  other  of  the  feudal  services,  entitled  to  enforce 
its  performance  by  the  seizure  of  chattels  upon  the 
land,  this  being  known  as  the  remedy  of  "distress."^" 
This  right  of  distress  was  a  distinctive  feature  of  the 
particular  class  of  rents  known  as  "rents  service." 

The  right  of  distress  was  an  incident  of  the  right 
of  lordship,  the  ''seignory,"  or,  when  the  tenure  was 
for  an  estate  less  than  a  fee  simple,  of  the  reversion 
remaining  in  the  lord,  and  consequently,  if  the  lord 
granted  the  seignory  or  reversion  while  retaining  the 
rent,  or  granted  the  rent  while  retaining  the  seignory 
or  reversion,  the  rent  could  no  longer  be  enforced  by 
distress,  and  was  accordingly  thereafter  termed  a  "rent 
seek"  or  "dry  rent."*^ 

In  the  case  of  a  rent  created  by  the  grant  of  a 
rent  by  the  owner  of  land,  of  which  he  retained  the 
ownership,  no  relation  of  tenure  was  created,  and  con- 
sequently there  was  no  remedy  by  way  of  distress  for 
the  enforcement  of  the  obligation,  A  rent  so  created 
was    accordingly    another    form    of    "rent    seek."      A 

15.  Ante,  §   6.  §  415. 

16.  Litt.,      §      122;      Gilbert,  18.     Litt.   §§   218,   225-228;    Deu 
Rents,  9.                                                      d.    Farley   v.    Craig,    15    N.    J.    L. 

17.  Litt.,  §§   213,  216.    See  /"«<,       If 2. 


1464  Real  Property.  [§  404 

right  of  distress  might,  however,  be  expressly  given  in 
the  grant,  in  which  case  the  rent  was  known  as  a  ''rent 
charge."^''  Rents  charge,  thus  created  hy  a  grant  of  a 
rent  by  the  owner  of  land,  he  retaining  the  entire 
interest  in  the  land,  are  quite  common  in  England,  they 
being  sometimes  granted  by  the  purchaser  of  land  as 
part  of  the  consideration  therefor,  and  also  being  util- 
ized as  a  mode  of  providing  for  younger  sons  and 
others  in  family  settlements.  In  this  country,  however, 
they  are  very  infrequent.  They  are  in  effect  merely 
annuities  secured  on  land,  and  in  some  cases  equity  will 
enforce  their  payment  by  a  sale  of  the  land,  as  in  the 
case  of  a  mortgage  or  other  lien. 

After  the  Statute  Quia  Emptores,  a  conveyance  of 
land  in  fee  simple  no  longer  had  the  effect  of  creating 
a  relation  of  tenure  between  the  feoffor  and  feoffee,  but 
the  feoffee  merely  became  substituted  in  place  of  the 
feoffer.  Consequently,  a  reservation  of  rent  on  such  a 
conveyance  thereafter  made  could  not  be  regarded  as 
a  rent  service,  and  was  a  rent  seek,  without  the  right 
of  distress,  unless  this  right  was  expressly  given,  so 
as  to  render  it  a  rent  charge.^*^'  Since,  however,  this 
statute  did  not  apply  in  the  case  of  a  conveyance  of  an 
estate  less  than  a  fee,  a  rent  service  is,  even  at  the 
present  day,  created  by  the  reservation  of  rent  upon  the 
conveyance  or  lease  by  a  tenant  in  fee  of  a  less  estate, 
either  an  estate  tail,  an  estate  for  life,  or  one  for  years ; 
and  likewise  when  a  tenant  of  an  estate  less  than  a  fee 
conveys  or  leases  for  a  period  less  than  his  own  estate, 
so  as  to  leave  a  reversion  in  him.     Consequently,  the 

19.  Litt.  §§  218,  219;  Co.  Litt.  In  Pennsylvania,  a  rent  created 
150b;  2  Pollock  &  Maitland,  Hist.  by  a  reservation  upon  the  con- 
Eng.  Law,  129.  veyance    of    land    in    fee    simple 

20.  Litt.  §§  215-217;  Co.  Litt.  is  a  rent  service,  but  this  is 
143b,  Hargrave's  note;  Bradbury  owing  to  the  fact  that  the  statute 
V.  Wright,  2  Doug.  624;  Van  Quia  Emptores  is  not  in  force 
Rensselaer  v.  Chadwick,  22  N.  Y.  there.  Ingersoll  v.  Sargeant,  1 
32.  Whart.    (Pa.)    336. 


§  405]  Eent.  14G5 

rent  reserved  on  the  ordinary  lease  for  years  is  i>rox> 
erly  a  rent  service.-^ 

It  is  stated  by  Coke  tliat  rent  service  is  so  called 
''because  it  hath  some  corporal  service  incident  to  it, 
which  at  least  is  fealty,"-^  and  upon  the  strength  of  this 
statement,  as  transmitted  by  Blackstone,-^  it  has  been 
asserted,  in  two  states,^^  that  in  view  of  the  fact  that 
fealty  is  not  there  recognized,  rent  service  is  non  ex- 
istent. In  the  time  of  Coke,  since  rent  service  was 
essentially  tenurial  in  character,  and  fealty  was  an  in- 
cident of  tenure,-^  it  followed  that  rent  service  was 
accompanied  by  fealty,  but  the  reason  that  rent  service 
was  so  called  appears  really  to  have  been  that  it  was  in 
itself  a  service.  The  expression  rent  service  was  in  use 
nearly  three  hundred  years  before  Coke,^^  and  the 
writers  of  that  earlier  time,  as  well  as  the  judges,  speak 
of  rent  as  one  class  of  service.^' 

§  405.  Payments  which  are  not  properly  rent.  Rent 
can,  by  the  common  law  authorities,  be  reserved  only 
out  of  land  or  things  constituting  in  law  a  part  of  the 
land,  to  which  the  landlord  may  have  recourse  to  dis- 
train, and  camiot  be  reserved  out  of  incorjjoreal  things.^'' 
Whether  the  statement  that  rent  must  be  reserved  out 
of  things  to  which  the  landlord  may  have  recourse  to 

21.  Litt.   §§    214,  215;    Ehrman       Maitland,    Hist.     Eiig.     Law,     128 
V.    Mayer,    57    Md.    621;    Ingersoll       note. 

V.  Sergeant,  1  Whart.    (Pa.)    337;  27.     See   Bracton,    bk.    2,   c.    16, 

Den  d.  Farley  v.   Craig.   15   N.   J.  fol.    35a;    Britton    (Nichol's    Ed.) 

L.   192.  tk.  1,  c.  28,  §  16,  bk.  2,  c.  10,  §  1; 

22.  Co.  Litt.   142a.  Y.  B.  33-35  Edw.  1,  p.  208;   Y.  B. 

23.  2  Blackst.  Comm.   42.  1   &   2,   Edw.    2    (Selden    Soc.)    p. 

24.  Herr  v.  Join, son,  11  Colo.       119,  pi.  36;   Y.  B.  2  &  3,  Edw.  2. 
393,  18  Pac.  342;  Penny  v.  Little,       p.   140,  pi.   58. 

4    111.   30L  £8.     Co.  Litt.  47,  142a;   Gilbert. 

25.  Litt.    §§    91,    132;    Co.    Litt.  Rents,  120;   2  Blackst.  Comm.  41; 
ft7b,  93a.  Buszard  v.  Cupel,  8  Barn.  &  Cr. 

26.  See  Y.  B.  33-35  Edw.  1,  p.  141. 
£52,   referred    to   in   2    Pollock    & 


146G  Real  Property.  [-§>  4i)5 

distrain  is  to  be  regarded  as  a  statement  of  the  reason 
for  the  rule  precluding  the  reservation  of  rent  out  of 
incorporeal  things,  or  a  statement  of  the  result  of  the 
rule,  does  not  clearly  appear.  In  favor  of  the  former 
view  reference  may  be  made  to  statements  to  be  found 
that  the  king  may  resei-ve  rent  upon  a  lease  of  in- 
corporeal things  for  the  reason  that,  by  virtue  of  his 
jDrerogative,  he  can  distrain  on  all  lands  of  his  lessee,^'' 
and  that  rent  may  be  reserved  on  a  demise  of  the 
vesture  or  herbage  of  land  for  the  reason  that  the 
lessor  may  distrain  the  cattle  on  the  land.""  If  the 
common  law  rule  precluding  the  reservation  of  rent 
upon  a  lease  of  an  incorporeal  thing  is  to  be  regarded 
as  based  on  the  inability  to  distrain  thereon,  the  ques- 
tion might  arise  whether  the  rule  remains  the  same  in 
any  jurisdiction  in  which,  as  is  the  case  in  most  of  the 
states,  the  right  of  distress  no  longer  exists.^ ^  A 
differentiation  originating  in  the  existence  or  non  exis- 
tence of  a  right  of  distress  might  well  be  ignored  after 
the  right  of  distress  has  been  entirely  abolished.  But 
whether  or  not  the  sum  named  upon  a  lease  of  an 
incorporeal  thing,  to  be  paid  by  the  lessee,  is  to  be 
regarded  as  rent,  it  is  recoverable  by  the  lessor  in  an 
action  of  contract  against  the  lessee.^^ 

Rent  cannot  be  reserved  out  of  chattels,  and  con- 
sequently sums  to  be  paid  by  a  bailee  of  chattels,  as 
compensation  for  their  use  and  enjoyment,  are  not 
properly  referred  to  as  rent.^^    In  the  case  of  a  lease  of 

29.  Co.    Litt.    47a,    Hargrave's  32.     Co.  Litt.  47a;  Dean  &  Chap- 
note,  ler  of  Windsor  v.  Gover.  2  Wms. 

30.  Co.  Litt.  47a.  Sauud.  302;    Raby  v.  Reeves,  112 

31.  In  Raby  v:  Reeves,  112  N.  N.  C.  688,  16  S.  E.  760. 

C.  688,  16  S.  E.  760,  sums  so  re-  33.     Spencer's  Case,  5  Coke  17a; 

served  were  regarded  as  not  con-  Sutliff    v.     Atwood,    15     Ohio    St. 

&tituting   rent,    while    a    contrary  186.     In   Mickle  v.   Miles,   31  Pa. 

view    was    adopted,    without    dis-  iSt.    20,    and    Vetter's    Appeal,    99 

cussion,  in  Jordan  v.  Indianapolis  Pa.  St.  52,  it  was  said  that  rent 

Water  Co.,  159  Ind.  337,  64  N.  E.  may   issue,   not   only   from    lands 

680.     See   1  Tiffany,  Landlord   &  and  tenements,  but  also  from  the 

Ten.  p.  1119.  personal    property    necessary    for 


§  405]  Kent.  1467 

land  together  with  chattels,  as  for  instance  of  a  farm 
with  the  stock  thereon,  or  of  a  house  with  the  furni- 
ture therein,  the  whole  rent  has  been  regarded  as  issu- 
ing from  the  land  alone,  so  as  to  authorize  a  distress 
on  the  land  for  the  entire  amount. ^^  So,  upon  an 
eviction  from  the  land,  the  liability  for  rent  has  been 
regarded  as  entirely  suspended,  without  reference  to 
the  fact  that  the  lessee  continues  to  enjoy  the  use  of 
the  chattels  included  in  the  lease.'''  And  a  declaration 
in  an  action  for  the  rent  was  not  regarded  as  defective 
because  it  averred  a  demise  of  land  alone,  although 
chattels  also  were  included.''*^  On  the  same  principle, 
that  the  rent  issues  entirely  out  of  the  land,  it  has 
been  decided  in  one  state  that  the  executor  of  the 
lessor,  though  entitled  to  the  chattels  at  the  end  of  the 
lease,  has  no  right  to  any  portion  of  the  rent  reserved 
on  a  lease  of  land  and  chattels."''  There  are  other 
cases,  however,  which  refuse  or  fail  to  apply  this  theory 
when  calculated  to  produce  unjust  results.  For  in- 
stance, it  has  been  decided  that  the  grantee  of'  the 
reversion  in  the  land,  without  any  interest  in  the  chat- 
tels, is  not  entitled  to  the  whole  rent  as  against  the 
grantor  retaining  the  chattels,''^  and  there  are  two  cases 

their  enjoyment,  but  by  this  the  36.     Farewell    v.    Dickenson,    6 

court  evidently  meant  merely  that  Barn.  &  C.  251. 

rent    does    not    cease    to    be    rent  37.     Armstrong     v.     Cummings. 

because    reserved     upon     a     lease  58  How.  Pr.  332;  Fay  v.  Holloran, 

of  land  which  also  includes  chat-  35  Barb.  (N.  Y.)  295. 

tels.  38.     Buffum   v.    Deane,   4    Gray 

34.  Newman  v.  Anderton,  2  (Mass.)  385.  In  Newton  v.  Speare 
Bos.  &  P.  (N.  R.)  224;  Selby  v.  Laundering  Co.,  19  R.  I.  546,  37 
Greaves,  L.  R.  3  C.  P.  594;  Lath-  Atl.  11,  it  is  decided  that  the 
rop  V.  Clewis,  63  Ga.  282:  Stein  transferee  of  the  land  in  such 
v.  Stely,  —  (Tex.  Civ.  App.)  — ,  case  is  entitled  only  to  the  value 
32   S.  W.   782.  of  the  use  anrj  occupation  of  the 

35.  Gilbert,    Rents,    175;    Y.   B.  land. 

12    Hen.    8,    11,    pi.    5.     Emott    v.  The  decision  in  Jones  v.  Smith, 

Cole,     Cro.     Eliz.     255;     Read     v.  14   Ohio,   606,  that   when   chattels 

Lawnse,    2    Dyer    212    b;     Contra  are    included    in    the    lease,    the 

Bro.   Abr.   Apportionment,   pi.   24.  covenant    to    pay    rent    does    not 


1468  Real  Propeety.  [§  405 

in  which  it  is  decided  that  if  the  chattels  leased  with 
the  land  are  lost  or  destroyed,  the  rent  should  be  ap- 
portioned, that  is,  diminished  proportionally.^^  These 
cases,  however,  appear  hardly  to  accord  with  the  ordi- 
nary rule,  hereafter  stated,^'^  that  no  apportionment 
of  rent  occurs  on  the  destruction  of  the  buildings  on  the 
land  leased,  and  in  one  of  these  cases  the  decision  is 
apparently  regarded  as  involving  a  repudiation  of  that 
rule. 

All  payments  which  a  lessee  agrees  with  the  lessor 
to  make,  are  not  necessarily  rent.  For  instance,  sums 
which  the  lessee  agrees  to  pay  to  the  lessor  on  account 
of  good  will,*^  of  improvements  made  by  the  latter,*^ 
or  of  existing  indebtedness,^^  are  not  rent,  the  pay- 
ments not  being  made  by  way  of  compensation  for  the 
use  and  enjoyment  of  the  property.  And  this  appears 
to  be  so  regardless  of  w^hether  the  parties  refer  to 
such  payments  as  rent,  since  what  constitutes  rent  is  a 
(iuestion  of  law  and  not  of  intention.  Likewise,  in 
spite  of  several  decisions  to  the  effect  that  an  agree- 
ment by  the  lessee  with  the  lessor  to  pay  the  taxes  is 
in  effect  one  to  pay  rent,'*^  the  proper  view  is,  it  is  sub- 
mitted, that  sums  thus  to  be  paid  to  a  third  person,  not 
a  representative  of  the  lessor,  do  not  constitute  rent.^^ 

pass  upon  a  transfer  of  the  rent  So.  546;  Miners'  Bank  of  Potts- 
alone  appears   questionable.  ville  v.  Heilner,  47  Pa.  452. 

39.  Newton  v.  Wilson,  3  Hen.  44.  Gedge  v.  Shoenberger,  83 
&  M.  (Va.)  470;  Whitaker  v.  Haw-  Ky.  91;  Roberts  v.  Sims,  64  Miss, 
ley,  25  Kan.  674,  37  Am.  Rep.  277.  597,  2  So.  72;  Neagle  v.  Kelly,  146 
The  same  view  is  favored  by  Le  111.  460,  34  N.  E.  947;  Knight  v. 
Taverner's  Case,  1   Dyer  56a.  Orchard,    92    Mo.    App.    466;    Mc- 

40.  Post,  §  413,  notes  81-85.  Cann   v.   Evans,   185  Fed.   93,  107 

41.  Smith      V.      Mapleback,      1  C.  C.  A.  313. 

Term.    Rep.    441.  45.     That   a   stipulation    to   pay 

42.  Hoby  v.  Roebuck,  7  Taunt.  taxes  is  not  a  stipulation  to  pay 
157;  Donellan  v.  Read,  3  Barn.  &  rent,  see  Hodgkins  v.  Price,  137 
Adol.  899.  Mass.  13;  Evans  v  .Lincoln  County, 

43.  First  Nat.  Bank  v.  Flynn,  204  Pa.  448,  54  Atl.  321  ("water 
117  Iowa,  493,  91  N.  W.  784.  Pax-  rents") ;  People  v.  Swayze,  15  Abb. 
ton  V.  Kennedy,  70  :Miss.   865,  12  Pr.  (N.  Y.)  432. 


§§  406,  407]  Eent.  1469 

It  has  been  well  said  in  this  connection  that  ''rent  has 
a  fixed  legal  meaning,  and  to  consider  all  payments 
which,  by  the  terms  of  the  lease,  a  tenant  is  bonnd  to 
make,  as  coming  within  its  definition,  would  lead  to  a 
confusion   of   ideas   without  necessity  or  advantage."^" 

§  406.  The  reservation  of  rent.  In  technical  lan- 
guage, the  rent  which  is  provided  for  by  the  lease  is 
"reserved,"  as  distinguished  from  a  part  of  the  land, 
which  may  be  "excepted."^'  Xo  particular  language 
is  necessary,  it  being  sufficient  if  it  indicates  an  inten- 
tion that  the  rent  named  shall  be  paid  or  rendered  to 
the  lessor.^^ 

It  is  a  well  recognized  rule  of  the  common  law 
that  rent  must  be  reserved  in  favor  of  the  lessor  or 
grantor  himself,  and  not  in  favor  of  a  stranger,  since 
it  is  paid  by  way  of  retribution  for  the  land  and  should 
consequently  go  to  him  from  whom  the  land  passes.^^ 
In  several  states,  however,  the  courts  have  referred  to 
money  which  the  lessee  agrees  to  pay  to  a  stranger  as 
rent,  without  apparently  any  suspicion  that  this  is  not 
in  accordance  with  the  common  law.""' 

As  a  rent  may  be  reserved  on  a  conveyance  in  fee, 
so  it  may  be  reserved  upon  the  transfer  of  the  whole 
interest  of  a  tenant  for  life  or  for  3^ears,  a  reversion  in 
the   transferor   being   unnecessary.^'^ 

§  407.  Transfer  of  rights  and  liabilities.  V]iou 
the  conveyance  of  a  reversion  to  which  rent  is  incident, 

46.  Garner  v.  Hannah,  13  N.  Rolle,  Abr.  447;  Gilbert,  Rents, 
Y.  Super,  Ct.  (6  Duer)  262,  per  54;  Ryerson  v.  Quackenbush,  26 
Slosson,   J.  X.  J.  L.  232. 

47.  Co.  Litt.  47a;  Doe  d.  Doug-  .50.  Toan  v.  Pline,  60  Mich.  385, 
las  V.  Lock,  2  Ad.  &  El.  705,  743.  27  X.  W.  557;  Brett  v.  Sayle,  60 
See  post,  §   436.  Miss.  192;   Schneider  v.  White,  12 

48.  Harrington  v.  Wise,  Cro.  Ore.  503,  8  Pac.  652;  Broddie  v. 
Eliz.  486;  Attoe  v.  Hemmings,  2  .Johnson,  1  Sneed  (Tenn.)  464. 
Bulstr,  281;  Doe  d.  Rains  v.  Knel-  And  cases  cited  <'>itr,  this  section, 
ler,  4  Car.  &  P.  3.  note  44. 

49.  Litt.  §  346;    Co.  Litt.  143b.  5].     Newcomb  v.  Harvey,  Carth. 
2  R.  P.— 18 


UTO  Real  Peoperty.  [§  407 

the  rent  also  j)asses  unless  there  is  a  stipulation  to  the 
contrary;'^-  but  the  reversion  may  be  conveyed  without 
the  rent,  or  the  rent  may  be  assigned  without  the 
reversion,  the  rent  and  the  reversion  being  thereby 
separated.^  ^ 

The  right  to  rent  which  has  already  become  due 
does  not  pass  upon  a  transfer  of  the  reversion  unless 
there  is  an  express  provision  that  it  shall  pass.^^  An 
assignment  of  rent  already  due  is  an  assignment  of  a 
mere  chose  in  action,  while  an  assignment  of  the  rent, 
that  is,  of  the  right  to  the  instalments  as  they  come 
due  in  the  future,  is  properly  not  an  assignment  of  a 
chose  in  action,  but  is  a  transfer  of  an  interest  in 
land.^^''  Were  rent  a  chose  in  action,  and  not  an  in- 
terest in  land,  it  would  not  have  been  transferable  at 
common  law. 

The  liability  for  rent  reserved  on  a  lease  for  years 
passes  to  an  assignee  of  the  leasehold  by  reason  of  the 
''privity  of  estate"  existing  between  him  and  the  owner 
of  the  reversion,  and  a  transferee  of  the  reversion  has 
also,  on  the  same  theory,  a  right  to  recover  the  rent. 
This  question  of  the  rights  and  liabilities  of  the*  trans- 

161;   Williams   v.  Hayward,   1   El.  126;   Gates  v.  Max,  125  N.  C.  139, 

&  El.  1040;    McMurphy  v.   Minot,  34   S.  E.   266;    Co.  Litt.   143a,   151 

4  N.  iH.  251.  b;    1  Tiffany,  Landlord  &  Ten.    § 

52.  Walker's  Case,  3  Coke  22;  180c. 

Butt  V.    Ellett,    19   Wall.    (U.    S.)  54.     Flight    v.    Bentley,    7    Sim. 

544,  22  L.  Ed.  183;   Steed  v.  Hin-  149;   Thornton  v.  Strauss,  79  Ala. 

son,  76  Ala.  298;  Dixon  V.  Niccolls,  164;    Damren   v.   American   Light 

39  111.  372,  89  Am.  Dec.  312;   Out-  &  Power  Co.,  91  Me.  334,  40  Atl. 

toun  T.  Dulin,  72  Md.  536,  20  Atl.  63;   Wise  v.  PfafE,  98  Md.  576.  56 

134;    Patten    v.    Deshon,    1    Gray  Atl.    815;     Burden    v.    Thayer,    3 

(Mass.)  325.  Mete.     (Mass.)     76,    37    Am.    Dec. 

53.  Crosby  v.  Loop,  13  111.  625;  117;  Farmers'  &  Mechanics'  Bank 
Watson  Y.  Hunkins,  13  Iowa,  547;  v.  Ege,  9  Watts  (Pa.)  436,  36  Am. 
Damren  v.  American  Light  &  Dec.  130;  Dobbs  v.  Atlas  Elevator 
Power  Co.,  91  Me.  334;  Beal  v.  Co.,  25  S.  Dak.  177, 126  N.  W.  250; 
Boston  Car  Spring  Co.,  125  Mass.  Kneeland  Investment  Co.  v.  Ald- 
157,  28  Am.  Rep.  216;  Brownson  rich,  63  Wash.  609,  116  Pac.  264. 
V.  Roy,  133  Mich.  617.  95  N.  W.  54a.  See  1  Tiffany,  Landlord  & 
710;    Moffatt    v.    Smith,    4    N.    Y.  Ten.  §  180c. 


§  407] 


Kent. 


1471 


ferees  by  reason  of  their  privity  of  estate  will  be  more 
conveniently  considered  in  connection  with  the  subject 
of  the  common-law  action  of  "debt"  as  a  remedy  for 
nonpayment  of  rent.^^ 

Covenants    to    pay    rent.      An    instrument    of 


lease  usually  contains  a  covenant  on  the  part  of  the 
lessee  to  pay  rent.  Both  the  benefit  and  the  burden  of 
a  covenant  to  i)ay  rent,  upon  a  demise  leaving  a  rever- 
sion in  the  lessor,  run  with  the  land,''"  and  consequently 
an  action  thereon  may  be  brought  by  the  transferee  of 
the  reversion,-^"  and  against  an  assignee  of  the  lessee.^ ^ 
The  liabilit}^  of  the  original  lessee  upon  his  cove- 
nant to  pay  rent,  being  of  a  purely  contractual  nature, 
is  not  affected  by  his  assignment  of  the  leasehold,  even 
though  the  assignment  is  assented  to  by  the  landlord.^^ 


55.  i'ost,   §   414,   notes    18-29. 

56.  See  I'ntr,  §  56. 

57.  Thursby  v.  Plant,  1  Saund. 
240,  1  Lev.  259;  Midgleys  v.  Love- 
lace, 12  Mod.  45;  Baldwin  v.  Wal- 
ker, 21  Conn.  168;  Webster  v. 
Nichols,  104  111.  160;  Outtoun  v. 
Dulin,  72  Md.  536;  Main  v. 
Feathers,  21  Barb.  (N.  Y.)  646; 
Maden  v.  Woodman,  205  Mass.  4, 
91  N.  E.  206. 

58.  Palmer  v.  Edwards,  1  Doug. 
187,  note;  Steward  v.  Wolveridge, 
9  Bing.  60;  Salisbury  v.  Shirley, 
66  Cal.  225,  5  Pac.  104;  Webster 
V.  Nichols,  104  111.  160;  Carley  v. 
Lewis,  24  Ind.  73;  Donelson  v. 
Polk,  64  Md.  504,  2  Atl.  824;  Lee 
v.  Payne,  4  Mich.  106,  119; 
Edwards  v.  Spalding,  20  Mont. 
54,  49  Pac.  443;  Hogg  v.  Reynolds, 
61  Neb.  758,  87  Am.  St.  Rep.  522, 
i^  iijl  W.  479;  Stewart  v.  Long 
Tsiand  R.  Co.,  102  N.  Y.  601,  8 
N.  E.  200,  55  Am.  Rep.  844;  Tyler 
Commercial  College  v.  Stapleton, 


33  Okla.  305,  125  Pac.  443;  Moline 
V.  Portland  Brewing  Co.,  73  Ore. 
532,  144  Pac.  572;  Hannen  v. 
Ewalt.  18  Pa.  9;  Bowdre  v.  Hamp- 
ton, 6  Rich.  Law  (S.  C.)  208; 
Pingry  V  Watkins,  17  Vt.  379. 

59.  Thursby  v.  Plant,  1  Saund. 
237,  1  Lev.  259;  Mills  v.  Auriol, 
1  H.  Bl.  433;  Randall  v.  Rigby, 
4  Mees.  &  W.  134;  Evans  v.  Mc- 
Clure.  108  Ark.  531,  158  S.  W. 
487;  Bonetti  v.  Treat,  91  Cal.  223. 
27  Pac.  612,  14  L.  R.  A.  151: 
Samuels  v.  Ottinger,  169  Cal.  209, 
Ann.  Cas.  1918E,  830,  146  Pac. 
638;  Grommes  v.  St.  Paul  Trust 
Co.,  147  111.  634,  37  Am.  St.  Rep. 
248,  35  N.  E.  820;  .Johnstone  v. 
Stone,  215  Mass.  219,  102  N.  E. 
366;  Latta  v.  Weiss,  131  Mo.  230, 
32  S.  W.  1005;  Creveling  v.  De 
Hart,  54  N.  J.  Law,  338,  23  Atl. 
611;  Taylor  v.  De  Bus,  31  Ohio 
St.  468;  Pittsburg  Consol.  Coal 
Co.  V.  Greenlee,  164  Pa.  549,  30 
Atl.   589;    Almy   v.   Greene,   13   R. 


1472 


Real  Property. 


[§  m 


Occasional  statements  that,  in  the  particular  case,  the 
lessor's  acquiescence  in  the  assignment,  or  failure  to 
assert  any  claim  for  rent  as  against  the  lessee,  had  the 
effect  of  relieving  him  from  liability,'^'^"  can  be  sup- 
ported only  on  the  theory  that  such  action  on  the  part 
of  the  lessor  constituted,  under  the  circumstances  of 
the  case,  a  new  lease  to  the  assignee,  thus  causing  a 
surrender  by  operation  of  law.^''''  And  the  same  may 
be  said  of  occasional  statements, ^^"^  that  the  acceptance 
of  rent  by  the  landlord  from  the  assignee  relieves  the 
lessee  from  liability.'*''^  Such  acceptance  of  rent  can 
have  this  effect  only  if  it  can  be  regarded  as  evidencing 
a  new  lease  by  the  landlord  to  such  assignee. 

An  assignee  of  the  leasehold  is  in  a  position  differ- 
ent from  that  of  the  lessee,  in  that  he  can  relieve  him- 
self from  further  liability  for  rent  by  making  an  as- 
signment to   another.^^'^ 


I.  350,  43  Am.  Rep.  32;  Granite 
Building  Corp.  v.  Rubin,  40  R.  I. 
208,  L.  R.  A.  1917D,  100  Atl.  310; 
Kanawha-Gauley  Coal  &  Colve  Co. 
V.  Sharp,  73  W.  Va.  427,  52  L.  R. 
A.  (N.  S.)  968,  Ann.  Cas.  1916E. 
786,   80    S.    E.   781. 

59a.  Fry  v.  Partridge,  73  111. 
51;  Colton  v.  Garham,  72  Iowa, 
324,  33  N.  W.  76;  Brayton  v.  Boom- 
er, 131  Iowa,  28,  107  N.  W.  1099: 
Kinsey  v.  Minnick,  43  Md.  112; 
Patton  V.  Deshon.  1  Gray  (Mass.) 
325;  Hutclieson  v.  Jones,  79  Mo. 
496;  Jamison  v.  Reilly,  92  Wash. 
538,   59   Pac.   699. 

59b.     Post,    §    431,   note    89. 

59c.  Fry  v.  Partridge,  73  111. 
51;  Kinsey  v.  Minnick,  43  Md. 
112;  "Hutcheson  v.  Jones,  79  Mo. 
496.  Jamison  v.  Reilly,  92  Wash. 
538,  159  Pac.  699   {semble). 

59d.  That  acceptance  of  rent 
from  the  assignee  does  not  have 
that  effect,  see  Copeland  v.  Watts. 


1  Starkie  95;  Beall  v.  White,  94 
U.  S.  382,  24  L.  Ed.  173;  Schehr 
V.  Berkey,  166  Cal.  157,  135  Pac. 
41;  Grommes  v.  St.  Paul  Trust 
Co.,  147  111.  634,  7  Am.  St.  Rep. 
248,  35  N.  E.  820;  Powell  v.  Jones, 
50  Ind.  App.  493,  98  N.  E.  646; 
Harris  v.  Heackman,  62  Iowa, 
411;  Johnson  v.  Stone,  215  Mass. 
219,  102  N.  E.  366;  Hunt  v.  Gard- 
ner, 39  N.  J.  Law  530;  Decker 
V  Hartshorn,  60  X.  J.  L.  548,  38 
Atl.  678;  McFarland  v.  May,  — 
Okla.  — ,  162  Pac.  753;  Hooks  v. 
Bailey,  5  Ga.  App.  211,  62  S.  E. 
1054;  Kanawha-Gauley  Coal  & 
Coke  Co.  V  Sharp,  73  W.  Va.  427, 
52  L.  R.  A.  (N.  S.)  968,  Ann.  Cas. 
1916E,  786,  80  S.  E.  781.  And 
cases  cited  i^ost,  8  431,  note  94. 
60.  Paul  V.  Nurse,  8  Barn.  & 
Cres.  486.  Johnson  v.  Sherman, 
15  Cal.  287,  76  Am.  Dec.  481; 
Consolidated  Coal  Co.  v.  Peers, 
166    111.   361,   38   L    R   .A.   624,   46 


§  407]  Eent.  1473 

It  has  been  decided  in  this  country  that,  even  npon 
the  assignment  of  rent,  reserved  on  a  lease  for  years, 
apart  from  the  reversion,  the  benefit  of  the  lessee's 
covenant  runs  with  the  rent,  so  as  to  authorize  suit  by 
the  assignee  thereon/'^ 

In  case  of  the  transfer  of  the  reversion  in  a  part 
only  of  the  land  by  the  lessor,  he  and  his  transferee 
are  each  entitled  to  recover,  on  the  lessee's  covenant  to 
pay  rent,  a  proportional  part  of  the  rent/'- 

The  liability  on  the  covenant  to  pay  rent  has  been 
regarded  as  apportionable  to  such  an  extent  as  to  ren- 
der an  assignee  of  the  leasehold  interest  in  part  of  the 
land  subject  to  a  proportional  part  thereof,  and  no 
more.^^ 

Covenant  to  p?y  rent  in  fee.    The  benefit  of  a 


covenant  to  pay  rent  reserved  or  granted  in  fee  will, 
according  to  the  English  cases,  it  seems,  not  run  with 
the  rent,  so  as  to  be  available  to  subsequent  owners 
thereof,  the   theory  being  that   a  covenant  will  never 

N.  E.  1105;    Trabue  v.   McAdams,  Wineman  v.  Hughson,  44  111.  App. 

8  Bush.   (Ky.)   74;   Consumers  Ice  22.      Contra,    Allen    v.    Wooley,    1 

Co.  V.  Bixler,  84  Md.  437,  35  Atl.  Blackf.  (Ind.)  148. 
1086;   Bell  v.  American  Protective  62.     City  of  Swansea  v.  Thomas, 

League,  163  Mass.  558,  28  L.  R.  A.  10  Q.  B.  Div.  48.  Dreyfus  v.  Hirt, 

452,   47   Am.   St.    Rep.   481,   40   N.  82  Cal.  621,  23   Pac.   193;    Crosby 

E.  857;   Cohen  v.  Todd,  130  Minn.  v.  Loop,  13  111.  625;   Worthington 

227,   L.   R.   A.   1915E,   846,   153   X.  v     Cooke,    56    Md.    51;    Linton    v. 

W.    531;    Meyer    v.    Alliance    In  v.  Hart,  25  Pa.  St.  193,  64  Am.  Dec. 

Co.,  86  N.  J.  L.  694,  92  At.  1086,  691;    Pelton  v..  Place,   71  Vt.   430, 

affirming  84  N.  J.   L.  450,  87  At.  76  Am.  St.  Rep.  782,  46  Atl.  63. 
476;    Durand   v.   Curtis,   57   N.   Y.  63.     Babcock  v.  Scoville,  56  111. 

7,  15  Am.  Rep.  453;    Washington  461;  Cox  v.  Penwick,  4  Bibb.  (Ky.) 

Natural   Gas   Co.   v.   Johnson,   123  538;     Daniels    v.    Richardson,    22 

Pa.   576,  10  Am.   St.  Rep.  553,  16  Pick.     (Mass.)      565;      Harris     v. 

At.  799;  Harvard  Inv.  Co.  V.  Smith,  Frank,    52    Miss.    155;    St.    Louis 

66  Wash.  429,  119   Pac.   864.  Public  Schools  v.   Boatmen's  Ins. 

61.     Willard  v.   Tillman,  2   Hill  &  Trust  Co.,  5  Mo.  App.  91   (aem- 

(N.  Y.)  274;  Demarect  v.  Willard,  hie);    Hogg  v.   Reynolds,  61   Neb. 

8    Cow.    (N.    Y.)    206;    Patten    v.  758,  87  Am.  St.  Rep.  522,  86  N.  W. 

Deshon,  1  Gray  (Mass.)   325.     See  479;    Van    Rensselaer   v.   Bradley, 


1474 


Eeal  Property, 


[§  408 


run  with  an  incorporeal  thing.*'*  In  this  country,  on  the 
other  hand,  it  has  been  usually  held  that  the  benefit 
of  the  covenant  will  run  with  the  rent,''^  this  being  in 
accord  with  the  view  held  here  that  a  covenant  will 
run  with  an  incorporeal  thing.^*' 

In  this  country,  likewise,  the  burden  of  a  covenant 
to  pay  rent  reserved  or  granted  in  fee  is  regarded  as 
passing  with  the  land,  so  as  to  render  the  grantee  of 
the  land  personally  liable  thereon.^^  In  England,  it 
would  seem,  in  view  of  the  expressions  adverse  to  the 
running  of  the  burden  of  covenants  on  conveyances  in 
fee,*'^  that  the  grantee  of  the  land  would  not  be  liable  on 
the  covenant.^^ 

§  408.  Death  of  person  entitled.  A  rent  charge 
granted  by  the  owner  of  land  is  real  or  personal  prop- 
erty, according  as  the  grantee  is  given  a  freehold  es- 
tate therein,  or  an  estate  less  than  freehold.'^*^     A  rent 


3  Denia  (N.  Y.)  135,  45  Am. 
Dec.  451;  Van  Rensselaer  v. 
Gifford,  24  Barb.  N.  Ry.  349. 

64.  Milnes  v.  Branch,  5  Maule 
&  S.  411;  Randall  v.  Rigby,  4 
Mees.  &  W.  130,  135. 

65.  Scott  V.  Lunt's  Adm'r,  7 
Pet.  (U.  S.)  596,  8  L.  Ed.  584: 
Streaper  v.  Fislier,  1  Rawle  (Pa.) 
155,  18  Am.  Dec.  604;  Trustees  of 
St.  Mary's  Church  v.  Miles,  1 
Whart.  (Pa.)  229;  Cook  v.  Bright- 
ly, 46  Pa.  St.  439;  Van  Rensselaer 
V.  Read,  26  N.  Y.  558,  distinguish- 
ing Devisees  of  Van  Rensselaer  v. 
Executors  of  Plainer,  2  Johns. 
Cas.  (N.  Y.)  24.  But  see  Irish  v. 
Johnston,  11  Pa.  St.  488,  and  the 
discussion  of  the  question  in 
American  notes  to  Spencer's  Case, 
1  Smith,  Lead.  Cas.  193. 

66.  See  onte,^  §  391,  notes  30- 
34. 


67.  Streaper  v.  Fisher,  1  Rawle 
(Pa.)  155;  Herbaugh  v.  Zentmyer, 
2  Rawle  (Pa.)  159;  Hannen  v. 
Ewalt,  18  Pa.  St.  9;  Van  Rensse- 
laer V.  Read,  26  N.  Y.  558;  Van 
Rensselaer  v.  Dennison,  35  N.  Y. 
393;  Carley  v.  Lewis,  24  Ind. 
123.  On  the  same  principle,  the 
burden  of  a  covenant  to  pay  rent 
reserved  upon  the  transfer  of  a 
life  interest  in  land  will  bind  a 
subsequent  transferee  of  such 
interest.  McMurphy  v.  Minot,  4 
N.  H.  251. 

68.  See  ante,   §   390. 

69.  Holt,  C.  J.,  in  Brewster  v 
Kidgill,  12  Mod.  166;  Copinger 
&  Munro's  Law  of  Rents,  473-476. 
But  that  the  burden  does  run,  see 
Sugden,  Vendor  &  Purchaser 
(13th  Ed)  483;  Harrison,  Chief 
Rents,  102. 

70.  Knolle's  Case,  1  Dyer,  5b; 


§  409]  Rent.  1475 

reserved  upon  tlie  grant  of  a  fee-simple  estate  in  land 
is  real  property  passing  to  the  heir  or  devisee.'^ 

A  rent  incident  to  a  reversion  partakes  of  the 
nature  of  the  reversion,  and  passes  therewith  on  the 
death  of  the  reversioner.  Accordingly,  it  more  usually 
passes  to  the  heir,  as  being  reserved  by  a  tenant  in  fee 
simple  making  a  lease  for  years,  though  it  is  person- 
alty belonging  to  the  executor  or  administrator,  if  re- 
served on  a  sublease  by  a  tenant  for  years. '^-  If, 
however,  a  rent  reserved  on  a  lease  for  years  by  a  ten- 
ant in  fee  simple  becomes  separated  from  the  rever- 
sion,"^ it  is  equivalent  to  an  estate  for  years  merely  in 
a  rent  charge,  and  passes  to  the  personal  representative 
of  the  owner,  and  not  to  the  heir  or  devisee.'^^ 

Rent  which  has  become  due  is  personal  property, 
and  consequently,  upon  the  death  of  the  person  entitled 
thereto,  though  still  unpaid,  it  goes  to  his  personal 
representative,  and  not  to  his  heir  or  devisee.'^ 

§  409.  Time  at  which  rent  is  due.  A  lease  of  land 
ordinarily  states  either  the  periods  with  reference  to 
w^hich  the  installments  of  rent  are  to  be  computed,  as 
by  providing  for  a  "weekly,"  ''monthly,"  ''quarterly" 
or   "annual"   rent,   or  it    specifies   the   exact   days    on 

Butt's  Case,  7  Coke.  23a;  1  Woer-  87  Am.  Dec.  324;   Stinson  v.  Stin- 

ner,  Administration,  §  297.  son,  38  :Me.  593.  Towle  v.  Swasey, 

71.  Cobb  V.  Biddle,  14  Pa.  St.  106  Mass.  100;  Woodhurn's  Estate, 
444;  In  re  White's  Estate,  167  Pa.  138  Pa.  St.  606,  21  Am.  St.  Rep. 
St.  206,  31  Atl.  569.  As  to  the  932,  21  Atl.  16;  Huff  v.  Latimer, 
particular   mode   of  descent   of  a  33  S.  C.  253,  11  S.  E.  758. 

rent   charge   created   by  the   res-  73.     See  cute,  §  407,  note  53. 

ervation  of  a  rent  on  a  grant  in  74.     Knolle's    Case,    Dyer,    5b; 

fee,  see  Co.   Litt.   12b,   3   Preston,  Williams,  Executors  (9th  Ed.)  727. 

Abstracts,  54;   Van  Rensselaer  v.  75.        1    Woerner,    Administra- 

Hays,  19  N.  Y.  68.  tion,    §    300;    Mills    v.    Merryman, 

72.  1  Woerner,  Administration,  49  Me.  65;    Haslage  v.  Krugh,  25 
§  300;   Sacheverell  v.  Froggatt,  2  Pa.  St.  97.    Bealey  v.  Blake's  Adm'r, 
Saund,  367a,  notes;   Dixon  v.  Nic-  70  Mo.  App.  229;  Ball  v.  First  Nat. 
colls,  39  111.  372,  89  Am.  Dec.  312;  Bank  of  Covington,  80  Ky.  501. 
Rubottom  V.  Morrow,  24  Ind.  202, 


1-476  Eeal  Peopekty.  [§  409 

which  rent  is  to  be  paid.  In  the  latter  case  the  ques- 
tion as  to  the  time  for  payment  of  the  successive  in- 
stallments of  rent  is  merely  one  of  construction  of  the 
language  used.  In  the  former  case  the  rent  for  the 
particular  period  named,  whether  it  be  a  week,  a 
month,  a  quarter,  or  a  year,  does  not  become  due  until 
the  end  of  such  period,^*''  in  the  absence  of  a  stipula- 
tion,"^^ or,  it  seems,  a  custom,''^  to  the  contrary,  the 
theory  being  that,  since  rent  is  a  part  of  the  profits  of 
the  land,  it  is  not  payable  until  it  has  been  earned  by 
the  tenant's  enjojTiient  of  the  premises.  In  determin- 
ing what  is  the  last  day  of  the  rent  period,  whether  a 
year,  a  quarter,  a  month,  or  a  week,  for  this  purpose, 
the  same  method  of  comimtation  is  employed,  it  seems, 
as  in  determining  the  length  of  the  tenn,'^^  that  is,  the 
last  day  of  each  period,  on  which  day  the  rent  becomes 
due,  is  not  that  corresponding  to  the  first  day,  but  the 
day  previous  thereto.  For  instance,  if  the  term  begins 
on  the  second  day  of  January,  and  rent  is  in  terms  pay- 
able monthly,  it  becomes  due  on  the  first  and  not  the 
second  day  of  each  of  the  following  months,  and  if 
payable  yearly,  it  becomes  due  on  the  first  day  of 
each  of  the  following  years. ^*^ 

Not  infrequently  there  is  an  express  provision  for 
the  paymient  of  the  rent,  not  at  the  end  of  the  period 

76.  Coomber  v.  Howard.  1  C,  78.  Tignor  v.  Bradley,  32  Ark. 
B.  440;  Parker  v.  Gortatowsky,  781;  McParlane  v.  Williams,  107 
129  Ga.  623,  59  S.  E.  286;  Castle-  m.  33;  Watson  v.  Penn,  108  Ind. 
man  v.  Du  Val,  89  Md.  657,  43  Atl.  21,  58  Am.  Rep.  262,  8  N.  E.  636; 
821;  Hilsendegen  v.  Scheich,  55  Calhoun  v.  Atchison,  4  Bush.  (Ky.) 
Mich.  468,  21  N.  W.  894;  Kistler  261,  96  Am.  Dec.  299;  Buckley  v. 
V.  McBride,  65  N.  J.  L.  553,  48  Atl.  Taylor,  2  Term.  Rep.  600. 

558.   Ridgley   v.    Stillwell,  27   Mo.  79.     1  Tiffany,  Landlord  &  Ten. 

128;    Holt   V.   Nixon,    73    C.   C.   A.  p.  63. 

268,  141  Fed.   952.  80.     So  if  the  term  begins  Jan- 

77.  Menough's  Appeal,  5  Watts  uary  10th,  and  the  rent  is  pay- 
&  S.  (Pa.)  432;  Hilsendegen  v.  able  quarterly,  the  rent  falls  due 
Scheich,  55  Mich.  468,  21  N.  W.  on  April  9th,  July  9th,  October 
894;  Gibbs  v.  Ross,  2  Head.  9th,  and  January  9th,  and  not  on 
fTenn.)  437.  the   tenth    day    of   each   of   these 


§  409]  Een-t.  1477 

during  wliicli  it  is  earned,  but  at  the  commencement 
of  such  period,  that  is,  the  rent  is  made  payable  "in 
advance,"  as  it  is  usually  expressed. 

Time  of  day  for  payment.     Rent  may  be  paid 


at  any  hour  of  the  day  on  which  it  becomes  due,*^  but 
there  is  no  obligation  to  pay  it  until  midnight  of  tliat 
day,  and  the  tenant  is  consequently  not  in  default  until 
the  next  day.^^  Applying  this  doctrine,  it  has  been 
held  that  if  the  landlord,  by  his  action,  the  tenancy 
being  at  will,  terminates  the  tenancy  during  the  day  on 
which  the  rent  is  payable,  the  tenant  is  relieved  from 
liability, ^^  and  that  an  eviction  on  that  day  under  par- 
amount title  has  a  like  effect.^'*  On  the  same  theory 
it  has  been  decided  that  if  a  tenant  in  fee  simple,  after 
making  a  lease,  dies  on  the  rent  day,  the  installment 
of  rent  falling  due  on  that  day  belongs,  not  to  his  per- 
sonal representative,  but  to  his  heir  or  devisee,  as 
having  become  due  after  his  death,®-^  And  it  seems 
that,  in  case  the  reversion  is  transferred  on  that  day, 
the  transferee  is  entitled  to  the  installment  then  falling 
due.^^  The  English  courts  refused,  however,  to  apply 
such  a  theory  in  the  case  of  a  life  tenant  who,  after 
leasing,  not  under  a  i)ower,  died  on  a  rent  day,  and 
they  regarded  the  rent  in  such  a  case  as  belonging  to 
the  personal  representative  of  the  life  tenant,^"  being 
moved,  presumably,  to   this  determination,  by  the  fact 

months.      Donaldson    v.    Smith,    1  83.     Hammond     v.     Thompson. 

Ashm.   (Pa.)    197.  168  Mass.  531,  47  N.  E.  137. 

81.     Clun's    Case,    10    Co.    Rep.  84.     Smith  v.  Shepard,  15  Pick. 

127b;   Dibble  v.  Bowater,  2   El.  &  (Mass.)  147,  25  Am.  Dec.  432. 

Bl.  564;  Comyn.  landlord  &  Ten-  85.     Duppa    v.    Mayo,    1    Wms. 

ant,   219.  Saund.  287;    Rockingham  v.  Pen- 

•82.     Duppa    V.    Mayo,    1    Wms.  rice,    1    P.    Wms.    177. 

Saund.    287    and    note    (17);    Cut-  86.     See    Hammond    v.    Thomp- 

ting  V  .Derby,  2  W.  Bl.  1077.  Left-  son,  168  Mass.  531,  47  X.  E.  137. 

ley    V.    Mills,    4    Term    Rep.    170;  87.     Rockingham    v.    Penrice,    1 

Wolf  V.  Rauck,  150  Iowa,  87,  Ann.  p.  Wms.  177;  Southern  v.  Bellasis, 

Gas.    1912D,   386,   129   N.   W.   319;  1    P.    Wms.    179,    note.    Strafford 

Sherlock  v    Thayer,  4  Mich.   355,  v.    Wentworth,    Prec.    Ch.    555. 
66   Am.    Dec.    539. 


1478  Real  Property.  [§  410 

that  otherwise  the  tenant  under  the  lease  would  have 
escaped  liability  for  the  entire  rent  period.^^ 

Acceleration   of  rent.      Occasionally  the  lease 

provides  that  the  rent  for  the  whole  term  shall  im- 
mediately become  payable  upon  a  named  contingency, 
as  for  instance,  upon  the  insolvency  or  bankruptcy  of 
the  tenant,^^""  the  removal  of  his  personal  property 
from  the  premises,^^'*  or  his  failure  to  pay  an  install- 
ment of  rent  when  due.^^'^  Occasionally  the  courts  ap- 
pear to  have  applied  the  doctrine  of  "anticipatory 
breach,"  which  has  been  the  subject  of  considerable  dis- 
cussion in  connection  with  the  law  of  contracts,^^*^  to 
a  case  in  which  the  liability  for  rent  was  repudiated, 
this  being  regarded  as  immediately  giving  the  landlord 
a  right  of  action  against  the  tenant  for  damages,  esti- 
mated on  the  theory  that  the  latter  would  make  no 
further  pajmients  of  rent  as  stipulated. ^^"^ 

§  410.  Apportionment  as  to  time.  At  common 
law,  rent  is  not  regarded  as  accruing  from  day  to  day, 
like  interest,  but  it  is  only  upon  the  day  fixed  for  pay- 
ment that  any  part  of  it  becomes  due.^^  The  result  of 
this  principle  is  that,  ordinarily,  the  person  who  is  on 
that  day  the  owner  of  the  reversion  is  entitled  to  the 
entire  installment  of  rent  due  on  that  day,  though  he 
may  have  been  the  owner  of  the  reversion  or  rent  but 
a   part  of  the   time  which  has  elapsed   since  the  last 

88.     See  PoH,  §  410.  162  Cal.  602,  123  Pac.  797;  Minne- 

88a.     Piatt  v.  Johnson,  168  Pa.  apolis  Baseball  Co.  v.  City  Bank, 

47,   47   Am.    St.    Rep.    877,   31   Atl.  74  Minn.  98,  76  N.  W.  1024;  Brown 

935.  V.  Hayes,  92  Wash.  300,  159  Pac. 

88b.     Goodwin    v.    Sharkey,    SO  89. 
Pa.  St.  149.  89.     Clun's  Case,  10  Coke  126b; 

88c.     Johns  v.  Winters,  251  Pa.  Dexter  v.  Phillips,  121  Mass.  178. 

169,  96  Atl.  130;   Hart  v.  Wynne,  23    Am.    Rep.    261;     Anderson    v. 

—  (Tex.  Civ.)  — ,  40  S.  W.  848.  Robbins,   82   Me.   422,   9   L.   R.  A. 

88d.     See  Wald's  Pollock,  Con-  568,  19  Atl.  910;  Marshall  v.  Mose- 

tracts    (Williston's  Ed.)    p.  355  et  ley,  21  N.  Y.  280;   Bank  of  Penn- 

seg  sylvania  y    Wise,   3    Watts    (Pa.) 

88e.     Bradbury     v.     Higgenson,  394. 


<§  410]  Eent.  1479 

rent  day.  Conversely,  one  who  has  been  the  owner  of 
the  reversion  or  rent  during  a  part  of  that  period  can 
claim  no  portion  of  the  installment  unless  he  is  such 
owner  at  the  time  at  which  the  installment  is  payable  by 
the  terms  of  the  lease.  The  general  rule  in  this  regard 
is  ordinarily  expressed  by  the  statement  that  rent 
cannot  be  apportioned  as  to  time. 

Applications  of  this  rule  occur  as  follows:  If  a 
tenant  in  fee  simple,  having  made  a  lease,  dies  between 
two  rent  days,  the  entire  installment  of  rent  falling 
due  belongs  to  his  heir  or  devisee,  as  being  the  owmer 
of  the  reversion  at  the  time  the  installment  falls  due, 
and  the  executor  or  administrator  can  assert  a  claim 
to  no  portion  thereof.'^''  And  when  the  landlord  makes 
a  conveyance  of  the  reversion,  the  grantee  is  entitled, 
in  the  absence  of  a  contrary  stipulation,  to  all  the  rent 
which  falls  due  at  the  next  rent  day,  and  the  grantor 
can  claim  no  part  thereof,^  ^  So  in  case  the  tenant  is 
evicted  by  title  paramount  between  rent  days,  the 
landlord  cannot  claim  any  portion  of  the  installment 
next  falling  due,''-  and  this  is  a  fortiori  the  case  if  the 
landlord  himself  evicts  the  tenant.  The  case  is  the 
same  if  the  landlord  terminates  the  tenancy,  either 
by  force  of  an  express  option  so  to  do,^^"^^  or  in  accord- 
ance with  the  nature  of  the  tenancy,  as  being  one  at 

90.  Clun's  Case,  10  Coke,  127a;  92.  Emglisli  v.  Key,  39  Ala. 
Duppa  V.  Mayo,  1  Wms.  Saund.  113;  Martin  v.  Martin,  7  Md.  368, 
287;  Anderson  v.  Robbins,  82  Me.  61  Am.  Dec.  364;  Adams  v.  Bige- 
422,  8  L.  R.  A.  588,  19  Atl.  910.  low,  128  Mass.  365;  Russell  v. 
Eloodworth  v.  Stevens,  51  Miss.  Fabyan,  28  N.  H.  543,  61  Am. 
475;  Dorsett  v.  Gray,  98  Ind.  237;  Dec.    629. 

Allen    V.    Van    Houton,    19    N.    J.  93-94.     Zule  v.   Zule,   24   Wend. 

Law  (4  Harr.)  47.  (N.    Y.)     76,    35    Am.    Dec.    600: 

91.  English  V.  Key,  39  Ala.  113;  Nicholson  v.  Munigle,  6  Allen  (88 
Martin  v.  Martin,  7  Md.  368,  61  Mass.)  215.  But  see  dictum  in 
Am.  Dec.  364;  Hull  v.  Stevenson,  Perry  v.  Aldrich,  13  N.  H.  343,  38 
58  How.  Pr.  (N.  Y.)  135,  note.  Am.  Dec.  493,  to  the  effect  that 
Bank  of  Pennsylvania  v.  Wise,  a  lease  providing  for  the  termin- 
3  Watts  (Pa.)  394;  Hearne  v.  ation  on  a  contingency  should  be 
Lewis,  78  Tex.  276,  14  S.  W^  572.  construed  as  providing  for  ap- 
portionment. 


1480  Real  Property.  [§  411 

will/'^  or  for  breach  of  a  condition  subsequent.^^  By 
force  of  this  rule,  at  common  law,  if  a  tenant  for  his 
own  or  another's  life  makes  a  lease  for  years,  and  the 
lease  comes  to  an  end  by  reason  of  his  death  or  that 
of  the  cestui  que  vie,  the  lessee  entirely  escapes  liabil- 
ity for  the  installment  of  rent  next  falling  due.®'^  The 
lessor  or  his  executor  cannot  recover  the  whole  install- 
ment, since  the  life  interest  has  ceased  before  the 
installment  falls  due,  and  he  cannot,  under  the  rule 
against  apportionment,  recover  a  portion  calculated  up 
to  the  time  of  the  cessation  of  his  interest.  Nor  can  the 
remainderman  recover  any  portion  of  the  rent,  since  the 
lease  by  which  the  rent  was  reserved  is  no  longer  opera- 
tive, and  also  because  he  is  a  stranger  to  the  lease. 

The  rule  forbidding  the  apportionment  of  rent,  so 
far  as  concerns  a  rent  reserved  on  a  lease  by  a  tenant 
for  his  own  life,  was  changed  in  England,  by  Stat.  II 
Geo.  2,  c.  19,  §  15,  providing  that  if  any  tenant  for 
life  should  die  before  the  day  for  the  payment  of  rent 
reserved  on  a  lease  which  terminated  on  such  death, 
his  executors  or  administrators  might  recover  from 
the  under  tenant  a  proper  proportion  of  the  rent,  ac- 
cording to  the  length  of  time  between  the  last  rent  day 
and  the  death  of  the  tenant  for  life.  And  a  similar 
statute  has  been  enacted  in  a  number  of  states.  By 
later  legislation  in  England  the  right  of  apportionment 
has  been  gVeatly  extended,  and  in  a  few  states  there  is 
legislation  of  a  like  tendency.^ ^ 

§  411.  Amount  of  the  rent.  The  amount  of  tlie 
rent  to  be  jjaid  must  be  certain  or- capable  of  reduction 

95.  Leighton  v.  Thee;],  2  SaUc.  HI.  365,  55  Am.  Rep  424;  Watson 
413;  Robinson  v.  Deering,  56  Me.  v.  Penn,  108  Ind.  21,  8  N.  E.  636, 
357;  Hammond  v.  Thompson,  168  58  Am.  Rep.  26.  Gee  v.  Gee,  22 
Mass.  531,  47  N.  E.  137.  N.   C.    (2   Dev.  &  B.  Eq.)   103. 

96.  HaH  r.  Joseph  Middleby,  98.  See  Tiffmy,  Landlord  & 
197  Mass.  485,  83  N.  E.  1114.  Ten.     pp.     1076-1079;     Wilson     v. 

97.  Clun's  Case,  10  Coke  127a;  Hagey,  251  111.  452,  96  N.  E.  277; 
ex  parte  Smyth,  1  Swanst.  337,  Smlthvvick  v.  Oliver.  94  Ark.  451, 
and  notes;   Hogland  v.  Crum,  113  127   S.  W.  706. 


§  411]  Rent.  1481 

to  a  certainty,"^  but  it  is  sufficient  that  the  amount 
can  be  ascertained  before  the  time  for  payment.^  As 
an  example  of  rent  which  is  thus  ascertainable  at  the 
time  for  its  payment,  though  not  at  the  time  of  the 
demise,  may  be  mentioned  rent  consisting  of  a  certain 
portion  of  the  crop  which  may  be  raised  upon  the  land, 
or  computed  with  reference  to  the  amount  of  minerals 
extracted  from  the  land.  So  it  may  be  made  to  fluctuate 
with  the  price  of  wheat,^^with  the  income  which  the 
tenant  may  derive  from  the  use  of  the  premises,^  or 
with  the  particular  use  which  the  tenant  may  make  of 
the  land."* 

Not  infrequently  the  amount  of  the  rent  is  reduced 
by  an  agreement  entered  into  between  the  landlord  and 
tenant  after  the  making  of  the  lease.  That  such  an 
agreement  must  be  supported  by  a  valid  consideration 
has  been  recognized  in  a  numl:er  of  cases,^  and  there  are 
several  decisions  upon  the  sufficiency  of  the  considera- 
tion in  the  particular  case.^  In  spite  of  these  decisions, 
there  is,  it  is  submitted,  room  for  question  whether, 
applying  common  law  standards,  a  consideration  should 
be  regarded  as  necessary.    At  common  law,  one  entitled 

99.  Co.  Litt.  142a;  Gilbert,  Iowa,  86,  12  X.  W.  767;  Bow- 
Rents,  9.  ditch    V.    Chickering,    139    Mass. 

1.  Co.  Litt.  96a;  Selby  v.  283,  30  N.  E.  92;  Wharton  v.  An- 
Greaves,  L.  R.  3  C.  P.  594;  Walsh  derson,  28  Minn.  301,  9  N.  W. 
V.  Lonsdale,  21  Ch.  Div.  9;  Mc-  860;  Hazeltine  v.  Ausherman,  87 
Farlane  v.  Williams,  107  111.  33;  Mo.  410;  Coe  v.  Hobby,  72  N.  Y. 
Butcher  v.  Culver,  24  Minn.   584.  141,    28    Am.    Rep.    120. 

2.  Kendall  v.  Baker,  11  C.  B.  6.  Doherty  v.  Doe,  18  Colo. 
842.  456,    33    Pac.    165;     Raymond    v. 

3.  Hardy  v.  Briggs,  14  Allen  Krauskopf,  87  Iowa,  602,  54  N. 
(Mass.)  473;  Long  v.  Fitzsimmons,  W.  432;  Lamb  v.  Rathburn,  118 
1  Watts  &  S.  (Pa.)  530.  Mich.  666,  77  N.  W.  268;  Ten  Eyck 

4.  Roulston  V.  Clark,  2  H.  Bl.  v.  Sleeper,  65  Minn.  413,  67  N. 
563;  Bowers  v.  .\ixon,  12  Q.  B.  W.  1076;  Bowman  v.  Wright,  65 
558.  Neb.   661,  91  N.  W.  580,  92  N.  W. 

5.  Goldsborough  v.  Gable,  140  580;  Holmquist  v.  Bavarian  Star 
111.  269,  15  L.  R.  A.  294,  29  N.  Brew.  Co.,  1  App.  Div.  347,  72  N. 
E.  722.  Id.  152  111.  594,  38  N.  Y.  St.  Rep.  443,  37  N  .Y.  Supp. 
E.    1025;    Wheeler    v.    Baker,    59  :',80. 


1482  Keal  Property.  [§  412 

to  rent  can  extin.^uish  it  by  executing  a  release  in  favor 
of  the  person  whose  estate  was  charged  therewith/ 
and  an  agreement  to  reduce  the  rent  is,  it  is  conceived, 
in  effect  merely  a  partial  release  of  the  rent,  that  is, 
a  pro  fauto  transfer  of  the  rent  by  way  of  release, 
w^hich  is  perfectly  valid  at  common  law,  without  any 
consideration.^  The  common  law  release,  however,  re- 
quired a  seal,  and  in  so  far  as  a  seal  may  still  be 
necessary  to  the  validity  of  a  release,  an  agreement, 
not  under  seal,  for  the  partial  or  total  extinguishment 
of  rent,  might  well  be  regarded  as  a  contract  to  execute 
a  release,  to  which  the  court  would  give  elfect  only  if 
supported  by  a  consideration. 

An  agreement,  made  after  the  making  of  the  lease, 
in  terms  to  increase  the  rent,  does  not,  strictly  speaking, 
increase  the  rent.  The  additional  sum  agreed  to  be 
paid  is  not  rent,  since  it  is  not  reserved  upon  the  mak- 
ing of  a  lease  or  other  conveyance.^  The  only  theory 
on  which  it  could  be  regarded  as  rent  would  be  by 
considering  the  agreement  as  a  new  demise,  effecting 
a  surrender  by  operation  of  law  of  the  original  lease,^" 
but  this  would  give  to  the  agreement  a  force  ordinarily 
not  contemplated  by  the  parties. ^^ 

§  412,  Apportionment  as  to  amount.  Eent  may 
be  apportioned  as  regards  the  amount  thereof,  that  is,  a 
person  may  become  entitled  to,  or  liable  for,  a  portion 
only  of  the  rent  originally  reserved.^^  Either  one  of 
three  different  cases  of  such  apportionment  may  arise, 
that  is:  (1)  a  right  to  a  distinct  portion  of  the  rent, 
and  to  such  portion  onh',  may  be  vested  in 
each  of  two  or  more   persons;      (2)    a  liability  for  a 

7.  Post,  §  413,  note  39-41.  32   N.   Y.   Super.   Ct.    (2    Sweeny) 

8.  See  Pollock,  Contracts  (Wil-       74. 

liston's  Ed.)  813.  10.     Post,   §   431. 

9.  Donellan   v.    Read,    3    Barn.  11.     See  Doe  d.  Monck  v.  Geekie, 

6  Adol.    899;    Hoby   v.    Roebuck,       5  Q.  B.  841. 

7  Taunt.  157;  Coit  v.  Braunsdorf,  12.     As     to     apportionment     of 


<^  412]  •  Eent.  1483 

distinct  portion  of  the  rent,  and  for  sucli  portion 
only,  may  be  imposed  on  one  person,  another  being' 
liable  for  the  balance;  or  (8)  the  rent  may  be  extin- 
guished as  to  a  joortion,  and  a  ])ortion  only. 

An  apportionment  of  the  character  first  referi'ed 
to,  resulting  from  the  vesting  of  the  right  to  a  distinct 
])ortion  of  the  rent  in  each  of  two  or  more  persons,  oc- 
curs when  the  landlord  grants  the  reversion  in  part  of 
the  land,  retaining  the  balance,  ^^  and  also  when  he 
transfers  the  reversion  in  different  parts  of  the  land  to 
different  persons,  not  retaining  any  part  thereof.^^ 
And  the  case  is  the  same  when  he  severs  the  reversion 
by  devise. ^^  An  apportionment  also  takes  place  if  the 
reversion  is  severed  by  act  of  the  law,  as  when,  on  the 
death  of  the  landlord,  it  passes  to  two  or  more  heirs, ^" 
or  when  it  passes  to  the  heir,  and,  as  to  one-third,  to 
the  widow.^"  In  the  case  of  such  a  severance  of  the 
reversion,  the  tenant  is  entitled  to  demand  that  the 
jury  determine,  in  an  action  for  the  rent,  the  respective 
values  of  the  different  portions  of  the  land,  and  the  con- 
sequent extent  of  his  obligation  to  each  owner  of  a 
part  of  the  reversion. ^^ 

Not  only  may  the  rent  be  apportioned  by  a  sever- 
ance of  the  reversion,  but  it  may  also  be  apportioned 

rent  on  lease  of  land  and  chat-  22  Pa.  144. 

tels,  see  wife,  §  405,  notes  34-40.  15      Ewer    v.    .Aloyle,   Cro.    Eliz. 

13.  Co.  Litt.  148a;  2  Co.  Inst.  771;  Hare  v.  Prou:foot.  6  U.  C. 
504;    West  v.  Lassells,  Cro.   Eliz.  Q.   B.    (0.   S.)    617. 

851;    Bliss   v.   Collins,   5   Barn.   &  16.     Leitch  v.  Boyington,  84  111. 

Aid.   876;    Worth ington  v.   Cooke,  i79,  25  Am.  Rep.  442;  Cole  v.  Pat- 

56   Md.   51;    Biddler   v.   Hussman,  terson,    25    Wend.     (X.    Y.)     456; 

23  Mo.  597;   Grubbie  v.  Toms,  70  Bank    of    Pennsylvania    v.    Wise, 

N.    J.    Law    522,    57    Atl.    144,    Id.  3   Watts    (Pa.)    404. 

71   .\.   J.   Law,  338,  59  Atl.   1117;  17.     1  Rolle  Abr.  237,  pi.  5. 

Linton    v.    Hart,    25    Pa.    193.    64  18.     Bac.    Abr.    Rent     (.M.    3)  ; 

Am.   Dec.   691.  Fish    v.    Campion,    1    Rolle,    Abr. 

14.  Gilbert,  Rents.  173;  Ehr-  237,  pi.  1;  Bliss  v.  Collins,  5  Barn, 
man  v.  Mayer,  57  Md.  612,  40  Am.  &  Aid.  876;  Hare  v.  Proudloot,  6 
Rep.  448;  Crosby  v.  Loop,  13  111.  U.  C.  Q.  B.  (0.  S.)  617;  Diddle 
625,    14    111.    320;    Reed    v.    Ward,  v.   Huss,  23  Mo.  597. 


1484  Eeal  Property.  .  [§  412 

by  the  landlord  without  reference  to  the  reversion,  this 
being  either  retained  by  him  or  transferred  to  another, 
as  when  one  who  has  demised  land  for  a  term  of  years, 
reserving  rent,  grants  to  each  of  several  i^ersons,  or  to 
one  person,  a  portion  of  the  rent.^^  So  tenants  in  com- 
mon of  land,  after  making  a  lease  thereof,  reserving 
one  entire  rent,  m-iy,  without  partitioning  the  reversion, 
apportion  the  rent  between  them.^'^ 

On  severance  of  leasehold.  In  case  the  lease- 
hold interest  in  different  parts  of  the  premises  becomes 
vested  in  different  persons,  each  part,  or  the  owner  of 
each  part,  is  ordinarily  liable  only  for  a  proportioned 
part  of  the  rent.-^  And  the  original  lessee  remains 
liable  to  the  landlord  for  the  whole  rent,  under  his 
covenant  to  pay  rent.^^ 

A  tenant  cannot,  without  the  consent  of  the  owner 
of  the  rent,  by  any  disposition  of  the  land  or  of  a  part 
thereof,  apportion  the  rent  so  as  to  affect  the  right  of 
such  owner  to  collect  the  whole  rent  which  may  at  any 
time  fall  due,  by  means  of  a  proceeding  against  the 
land.  Accordingly,  if  the  tenant  of  part  of  the  leased 
premises  is  in  default,  the  landlord  may  distrain  upon 
another  part,-^  and  he  may  presumably  enforce  a  con- 
dition of  forfeiture  against  such  other  part  as  well  as 
against  that  part  which  belongs  to  the  tenant  in  default. 

Partial  extinction  or  suspension  of  rent.    Cases 

of  the  apportionment  of  the  rent  by  reason  of  the  ex- 
tinction or  suspension  of  a  portion  of  the  rent  occur 

19.  Ards  V.  Watkins,  Cro.  Eliz.  ardsou,  39  Mass.  (22  Pick.)  565; 
651;  Bliss  v.  Collins,  5  Barn.  &  Hogg  v.  Reynolds,  61  Neb.  758, 
Aid.  876,  882;  Rivis  v.  Watson,  5  87  Am.  St.  Rep.  522,  86  N.  W. 
Mees.  &  W.  255.  479;   Van  Rennselaer  v.  Bradley, 

20.  Powis  V.  Smith,  5  Barn.  &  3  Denio  (N.  Y.)  135,  45  Am.  Dec. 
Aid.   850;    Woolsey  v.  Lasher.   3?  451. 

App.  Div.  108,  54  N.  Y.  Supp.  737.  22.     Aute,  §  407,  note  59. 

21.  Babcock  v.  Seoville,  56  111.  23.  Curtis  v.  Spitty,  1  Bing. 
461;  St.  Louis  Public  Schools  v.  N.  Cas.  756;  Jackson  v.  Wychoff, 
Boatmen's  Insurance  &  Trust  Co.,  5   Wend.    (X.   Y.)    53. 

5  Mo.   App.   91;    Daniels  v.  Rich- 


§  412]  Eent.  1485 

upon  the  termination  of  the  tenant's  estate  as  regards 
a  part  of  the  jDremises.  Thus,  if  the  tenant  of  the  whole 
premises  leased  surrenders  his  leasehold  interest  in  a 
part  thereof,  or  his  leasehold  is  otherwise  in  part 
merged  in  the  reversion,  the  rent  is  apportioned,  it  be- 
ing extinguished  in  an  amount  proi)ortioned  to  tlie 
value  of  the  portion  as  to  which  the  lease  is  no  longer 
outstanding,  while  still  existent  as  regards  the  lial- 
ance.-"*  The  rent  is  also  apportioned  in  case  the  land- 
lord re-enters  upon  a  part  only  of  the  land  for  breach  of 
a  condition  of  the  lease,-^  and  in  case  the  tenant  is 
evicted  from  part  of  the  land  by  title  paramount,  the 
landlord  being  thereafter  entitled  to  such  portion  only 
of  the  rent  as  is  proportioned  to  the  part  of  the  leased 
premises  which  the  tenant  still  holds  under  him.-*^ 
Occasionally  the  rent  is  apportioned  by  reason  of  the 
lessee's  inability  to  obtain  possession  of  the  whole  of 
the    demised    premises.^' 

In  laction  on  covenant  for  rent.     There  is  a 

dictum  in  an  English  case,-**  that  "in  covenant  as  be- 
tween lessor  and  lessee,  where  the  action  is  personal, 
and  upon  a  mere  privity  of  contract,  and  on  that 
account  transitory  as  any  other  personal  contract  is,  the 
rent  is  not  apportionable."    This  dictum,  it  seems  clear, 

24.  Litt.  §  222;  Co.  Litt.  148a;  470,  74  Am.  Dec.  108;  Fillebrown 
Smith  V.  Mallngs,  Cro.  Jac.  160;  v.  Hoar,  124  Mass.  580;  Cheairs 
Higgins  V.  California  Petroleum  &  v  Coats,  77  Miss.  846,  50  L.  R. 
Asphalt  Co.,  109  Cal.  304,  41  Pac.  A.  Ill,  78  Am.  St.  Rep.  546,  28 
1087;  Leitch  v.  Boyington,  84  111.  So.  728;  Lawrence  v.  French,  25 
179,  34  L.  R.  A.  55,  57  Am.  St.  Wend.  (N.  Y.)  445;  Christopher  v. 
Rep.  396;  Ehrman  v.  Mayer,  57  Austin,  11  N.  Y.  216;  Poston  v. 
Md.  612,  40  Am.  Rep.  448;  Nellis  Jones,  37  X.  Car.  (2  Ired.  Eq.) 
V.  Lathrop,  22  Wend.  (X.  Y.)  121,  350;  Tunis  v.  Grandy,  22  Gratt. 
34    Am.    Dec.    285;    Van    Rensse-  (Va.)    109,  Co.  Litt.  148b. 

laer  v.   Gifford,  24   Barb.    (X.  Y.)  27.     Ante,   §   413,  notes  43-59. 

349.  28.     Stevenson    v.    Lambard,    2 

25.  Walker's  Case,  3  Coke  22;  East  575,  per  Lord  EHenborough, 
Collins  V.  Harding,  13  Coke  58.  C.  J. 

26.  Halligan    v.    Wade,    21    111. 
2  R.  P.— 19 


1486  Eeal  Pkoperty.  [§  412 

is  not  correct  as  applied  to  an  action  upon  the  covenant 
for  rent,  by  a  lessor  who  has  disposed  of  the  reversion 
in  part  of  the  leased  premises,  he  being  entitled  to 
recover  a  proportionate  part  of  the  rent  and  no  more.^^ 
Whether  it  is  correct  as  applied  to  a  case  in  which  the 
rent  is  in  part  extinguished  or  suspended,  as  upon  a 
surrender  or  eviction  by  title  paramount,  it  is  difficult 
to  say.  The  covenant  might  frequently  be  construed  as 
one  to  pay  the  rent  that  may  become  due,  rather  than 
to  pay  the  amount  reserved,  in  which  case  the  liability 
under  the  covenant  would  be  the  same  as  in  an  action 
of  debt  for  rent,  and  a  loss  of  the  possession  of  part 
of  the  premises  would  be  a  ground  for  a  pro  tanto 
reduction  of  liability  in  an  action  on  the  covenant,  as 
in  an  action  of  debt.^*^  In  so  far  as  the  covenant  is  not 
'susceptible  of  this  construction,  it  is  somewhat  difficult 
to  find  a  satisfactory  ground  on  which  to  base  a  partial 
reduction  of  liability  in  case  of  the  partial  loss  of  pos- 
session by  the  tenant.'^  ^  The  courts  might  possibly 
apply  the  somewhat  indefinite  doctrine  of  failure  of 
consideration  in  this  connection. 

Of  rent  charge.     A  rent  charge  is  not  appor- 


tionable  to  the  same  extent  as  a.  rent  service.  Rent 
charges  were  never  favored  by  the  courts  as  were  rents 
service,  which  were  regarded  as  a  part  of  the  feudal  con- 
stitution of  the  realm.^-  Consequently,  if  the  owner  of  the 
rent  acquires  a  part  of  the  land  from  which  it  issues,  by 

29.  Swansea  v.  Thomas,  10  Q.  Poston  v.  Jones,  37  N.  C.  (2  Ired. 
B.  Div.  48;  Worthington  v.  Cooke,  Eq.)  350,  38  Am.  Dec.  683,  it  is  at 
56  Md.  51;  Linton  v.  Hart,  25  least  suggested  that  in  such  case 
p.  193,  64  Am.  Dec.  691.  a    court    of    equity    would    inter- 

30.  See  Baynton  v.  Morgan,  22  vene  in  order  to  compel  an  ap- 
Q.  B.  Div.  81,  per  Fry,  J.  portionment. 

31.  In  Shuttleworth  v.  Shaw,  6  32.  See  Gilbert,  Rents,  152.  A 
Upper  Can.  Q.  B.  539,  it  was  de-  rent  seek,  likewise,  has  been  re- 
cided  that  in  an  action  of  coven-  garded  as  not  apportionable  by 
ant  for  rent  there  could  be  no  the  act  of  a  party.  Vin.  Abr., 
apportionment  on  account  of  the  Apportionment  (A)  2;  Id.,  Rent 
partial  eviction  of  the  tenant.    In  (Ga.)  12. 


-§  41b']  Eent.  1487 

voluntary  conveyance,  no  apportionment  occurs,  and 
the  whole  rent  is  extinguished.^^  It  is  apportioned,  how- 
ever, if  the  owner  of  the  rent  releases  a  part  thereof,"* 
or  if  he  acquires  a  part  of  the  land  by  descent.^^  And 
even  on  a  voluntary  conveyance  to  him  of  part  of  the 
land  an  apportionment  occurs  if  it  is  so  agreed  be- 
tween the  parties  to  the  conveyance,  this  in  effect 
creating  a  new  rent  charge,"^^  Upon  a  transfer  of  a 
portion  of  the  rent  to  another  an  apportionment  oc- 
curs.^''' 

§  413.    Extinction    or    suspension    of    rent^ By 

release.  The  right  to  rent  ceases  upon  the  making  of  a 
release  of  the  rent  by  the  owner  thereof  in  favor  of 
the  owner  of  the  land.^^  If  the  release  is  in  terms  of 
a  portion  only  of  the  rent,  the  balance  remains  existent 
as  a  charge  on  the  whole  land.''''  A  release,  as  under- 
stood at  common  law,  is  an  instrument  under  seal,  and 
such  an  instrument  is  valid  though  without  any  con- 
sideration.^'^  An  agreement  not  to  claim  any  rent,  if 
not  under  seal,  and  not  supported  by  a  consideration, 
is,  like  any  other  such  agreement,  invalid.*^ 

The  fact  that  no  rent  has  been  demanded,  or  that 
no  rent  has  been  paid,  for  a  very  considerable  period, 
even  twenty  years  or  more,  does  not  raise  a  pre- 
sumption that  the  rent  has  been  released,  thougli  it  may, 
by  reason  of  the  statute  of  limitations,  prevent  a  re- 

33.  Litt.  §  222;  Co.  Litt.  147b,  38.  Litt.  §  479;  Co.  Litt.  280a; 
148a.  Howell  v.  Lewis,  7  C.  &  P.  566. 

34.  Co.  Litt.  148a;  Bac.  Abr.,  39.  Co.  Litt.  148a;  2  Leake 
Rent  (m)   1.  407;     Ingersoll     v.     Sargeant,     1 

35.  Litt.  §  224;   Co.  Litt.  194b;  Whart.    (Pa.)    337. 

Cruger  v.  McLaury,  41  N.  Y.  219.  40.     Co.   Litt.    264b;    Bac.    Abr., 

36.  Co.    Litt.    147b,    and    note;  Release     (A.);     Wald's     Pollock. 
Van  Rensselaer   v.   Chadwick,   22  Contracts    (Williston's  Ed.)    812. 
N.  Y.  32.  41.     See    Haseltine    v.    Ausher- 

37.  Co.  Litt.  148a;  Gilbert,  man,  87  Mo.  410;  Kaven  v. 
Rents,  163;  Farley  v.  Craig.  11  N.  Chrystie,  84  N.  Y.  Supp.  470; 
J.    Law    (<;    Halst.)    262.  Donaldson     v.     Wberry.     29     Out. 


1488- 


Real  Pboperty. 


[§  4].-? 


covery   of    particular    installments    of    rent    overdue.^- 
Withholding  of  possession.     It  has  ordinarily 


been  held  that  the  lessee  is  not  liable  for  rent  in  case 
the  lessor  prevents  him  from  taking  possession  under 
the  lease.*^  By  some  decisions,  even  though  the  lessee 
takes  possession  of  part  of  the  leased  premises,  he  is, 
if  excluded  from  the  balance,  not  liable  for  any  part 
of  the  rent  or  on  a  quantum  meruit,*'^  but  in  other  cases 
a  different  view  is  taken.*^  The  exclusion  of  the  tenant 
by  the  landlord  from  part  of  the  leased  premises  ap- 
pears so  analogous  to  that  of  an  eviction  of  the  tenant 
by  the  landlord  from  part,^^  that  it  might  well,  it  seems, 
be  regarded  as  having  a  similar  effect  in  suspending  the 
entire  rent.^'^ 

That  the  lessee,  without  being  prevented  from  tak- 
ing possession,  fails  to  take  possession,  is  obviously  no 
defense  to  a  claim  for  rent.^^  One  cannot  thus  rid 
himself  of  an  obligation  assumed  by  him,  merely  be- 
cause he  finds  it  convenient  to  withdraw  from  his  bar- 
gain. 


552.  But  in  Hill  v.  Williams,  41 
S.  C.  134,  9  S.  E.  290,  the  con- 
trary appears  to  be  assumed. 

42.  Ehrman  v.  Meyer,  57  Md. 
612,  40  Am.  Rep.  448;  Jackson 
V.  Davis,  5  Cow.  130,  15  Am.  Dec. 
451;  Lyon  v.  Odell,  65  N.  Y.  28; 
St.  Mary's  Church  Trustees  v. 
Miles,  1  Whart.    (Pa.)    229. 

43.  Reed  v.  Reynolds,  37  Conn. 
469;  Moore  v.  Guardian  Trust 
Co.,  173  Mo.  218,  73  S.  W.  143; 
Penny  v.  Fellner,  6  Okla.  386,  50 
Pac.  123;  McClurg  v.  Price,  59 
Pa.  420,  98  Am.  Dec.  356;  MerriU 
V.  Gordon,  15  Ariz.  521,  140  Pac. 
496.     See  ante,  §  50. 

44.  Moore  v.  Mansfield,  182 
Mass.  302,  65  N.  E.  398,  94  Am. 
St.  Rep.  657;  AlcClurg  v.  Price  59 


Pa.  420,  98  Am.  Dec.  356;  Penny 
V.  Fellner,  6  Okla.  386,  50  Pac. 
123.  See  McLeod  v.  Russell,  59 
Wash.  676,  110  Pac.  626. 

45.  See  Knox  v.  Hexter,  42  N. 
Y.  Super.  Ct.  (10  Jones  &  iS.)  8; 
Eldred  v.  Leahy,  31  Wis.  541,  11 
Am.  Rep.   613. 

46.  Ante,    §    58. 

47.  Post,  this  section,  note  95. 

48.  Levi  v.  Lewis,  6  C.  B.  N. 
S.  766;  Douglass  v.  Branch  Bank, 
19  Ala.  659,  54  Am.  Dec.  207; 
Little  V.  Hudgins,  117  Ark.  272. 
174  S.  W.  520;  Marix  v.  Stevens, 
10  Colo.  261,  15  Pac.  350;  Union 
Pac.  R.  Co.  V.  Chicago,  R.  I.  & 
P.  R.  Co.,  164  111.  88,  45  N.  E. 
488;  Brown  v.  Cairns,  107  Iowa, 
727,  77  N.  W.  478;  Becar  v.  Flues, 


§  '^I'S]  Kent.  1489 


Exclusion    by    paramount    owner.      Tliat    tlie 

lessee  is  niialjle  to  obtain  possession  owing  to  the  pos- 
session of  one  having  paramount  title^  is  a  good  defense 
to  a  claim  for  the  rent,^^  and  this  has  been  held  to  be 
so  even  though  the  exclusion  from  possession  extends 
to  but  a  part  of  the  premises.^"  It  has  been  decided, 
however,  that  if  the  lessee  takes  possession  of  the  part 
from  which  he  is  not  excluded,  he  is  liable  in  an  action 
of  use  and  occupation  accordingly. -"^^  It  would  seem 
that  the  partial  exclusion  of  the  lessee  from  possession 
by  one  having  paramount  title  might  well  be  assimilated, 
so  far  as  concerns  its  effect  on  his  liability  for  rent,  to 
his  partial  eviction  by  such  person,  so  as  to  call  for 
an  apportionment  of  the  rent,^-  and  there  are  occasional 
decisions  to  that  effect.^^ 

One  holding  under  a  previous  unexpired  lease  by 
the  same  lessor  holds  by  paramount  title,  for  this 
purpose,^^  as  for  others.'^^-^^ 

It  has  been  asserted  in  England  and  Canada,^'^ 
that  possession  of  part  of  the  leased  premises,  by  a 
third   person   holding  under  an  unexpired  prior  lease 

64  N.  Y.  518;   McGlynn  v.  Brock,  S';5  (semble). 

Ill  Mass.  219.  52.     Post,  this  section,  note  I>. 

49.  Brandt  v.  PhiUppi,  82  Cal.  53.  McLoughlin  v.  Craig,  7  Ir. 
640,  23  Pac.  122,  7  L.  R.  A.  224;  C.  L.  117;  Seabrook  v.  Moyer,  88 
Duncan  v.  Moloney,  115  111.  App.  Pa.  417. 

522;    Andrews    v.    Woodcock,    14  54.     See   Neale   v.    McKenzie,    1 

Iowa,    397;    Posten    v.    Jones,    37  Mees.     &     W.     746;     Dengler     v. 

i\.   C.    (2    Ired,   Eq.)    350,   38  Am.  Michelssen,   76    Cal.    125,    18    Pac. 

Dec.    683;    Maverick    v.    Lewis,    3  138;     Lawrence     v.     French,     25 

McCord    (S.   C.)    211;    State   Uni-  Wend.    (N.   Y.)    443,    7   Hill,   519; 

versity  v.  Joslyn,  21  Vt.  52.    See  Tunis  v.   Grandy,  22  Gratt.    (Va.) 

entc,  §  50.  519. 

50.  Neale  v.  McKenzie,  1  Mees.  55-56.  Ante,  §  58(a),  notes  43- 
&  W.  746;  Dengler  v.  Michelssen,  46. 

76  Cal.  125,  18  Pac.  138.  57.     Neale  v.  McKenzie,  1  Mees. 

51.  Lawrence  v.  French,  25  &  W.  747;  Ecclesiastical  Com'rs 
Wend.  (N.  Y.)  443,  7  Hill,  519;  of  Ireland  v.  O'Connor,  9  Ir.  C. 
Tunis  V.  Grandy,  22  Gratt.  (Va.)  L  242;  Holland  v.  Vanstone,  27 
109;    Wtitson    v.    Wand,    8    Exch.  U.  C.  Q.  B.  15. 


1490  Real  Pkopekty.  [§  413 

made  by  the  same  lessor,  will  not  constitute  even  a 
partial  defense  to  an  action  for  rent  under  the  second 
lease,  if  this  latter  is  under  seal,  the  theory  being  that 
it  then  cgerates  as  a  lease  in  possession  of  that  part 
of  the  land  of  which  the  lessor  has  possession,  and  a 
lease  of  the  reversion  (concurrent  lease^^)  of  that  part 
held  by  the  prior  lessee.  Such  a  view,  that  the  second 
lease  will,  so  far  as  possible  be  regarded  as  a  concurrent 
lease,  is  not  suggested  in  any  of  the  cases  decided  in 
this  country  as  to  the  liability  for  rent  when  a  part 
or  the  whole  of  the  premises  is  in  the  possession  of  a 
prior  lessee.'^  In  any  case,  it  would  seem,  the  question 
whether  the  second  lease  may  be  so  regarded  for  the 
purpose  of  imposing  liability  for  rent,  would  be  one  of 
the  construction  of  the  language  used. 

Exclusion  by  stranger  without  right.     There 


are  several  cases  to  the  effect  that  the  lessee's  inability 
to  obtain  possession  of  the  premises  owing  to  the  pres- 
ence of  a  third  person  wrongfully  in  possession,  such 
as  a  tenant  holding  over  his  term,  is  no  defense  to  an 
action  for  rent.*'°  This  view  accords  with  the  recog^ 
nized  rule  in  the  analogous  case  of  the  eviction  of  the 
tenant  by  a  wrongdoer.^ ^  There  are,  however,  to  be 
found  occasional  dicta  "^^  and  decisions  ^^  to  the  con- 
trary. 

Merger  and  surrender.  If  the  leasehold  in- 
terest and  the  immediate  reversion  thereon  become 
vested  in  the  same  person  or  persons,  either  by  the 
acquisition  of  the  former  interest  by  the  landlord,  or 

58.  Ante,  §  53(c).  52.    And  see  Field  v.  Herrick,  101 

59.  Ante,  this  section,  note  54.  111.  110. 

60.  Mechanics'  &  Traders'  Fire  61.     2      Tiffany,      Landlord      & 
Insurance   Co.    v.    Schott,   2    Hilt.  Ten.  p.  1301. 

(N.  Y.)  550;  Ward  v.  Edesheimer,  62.     Rieger   v.  Welles,   110   Mo. 

43   N.   Y.   St.    Rep.    138,    17   N.    Y.  App.    166.    84    S.   W.    1136;    Smart 

Supp.    173;    Cozens   v.    Stevenson.  v.  Allegaert,  14  Phila.    (Pa.)    179. 

5   Serg.   &  R.    (Pa.)    421;    Univer-  63.     Kean   v.    Kolkschneider.    21 

sity  of  Vermont  v.  Joslyn,  21  Vt.  Mo.  App.  538;   Hatfield  v.  Fuller- 


§  413:] 


Rent, 


1491 


by  tlie  acquisition  of  the  latter  interest  "by  the  tenant, 
or  by  the  simultaneous  acquisition  of  both  interests 
by  the  same  person  or  persons,  the  tenant's  interest  is 
merged  in  the  reversion,^^  and  the  rent  reserved  upon 
the  creation  of  the  lesser  estate  is  extinguished.*''' 
When  merger  occurs  as  a  result  of  the  acquisition  of 
the  tenant's  interest  by  the  landlord,  the  termination 
of  the  tenancy  and  extinguishment  of  the  rent  are  or- 
dinarily said  to  be  the  result,  not  of  merger,  but  of 
surrender,***'  that  is,  of  the  yielding  up  of  the  particular 
estate  to  the  landlord.**'  If  the  merger  or  surrender 
takes  place  as  to  a  part  of  the  leased  premises  only,  the 
rent  is  proportionately  extinguished.^^  The  merger  or 
surrender  obviously  does  not  atfect  the  liability  for 
rent  which  has  previously  accrued.*''' 


ton,  24  in.  278;  Goldman  v. 
Dieves,  159  Was.  47,  149  N.  W. 
713. 

64.  Ante,  §  59(e). 

65.  Otis  V.  California  Petroi- 
cum  &  Asphalt  Co.,  109  Cal.  304, 
41  Pac.  1087;  Otis  v.  McMillan, 
70  Ala.  46;  Erving  v.  Jas.  H. 
Goodman  &  Co.  Bank,  171  Cal.  559, 
153  Pac.  945;  Liebschutz  v. 
Moore,  70  Ind.  142,  36  Am.  Rep. 
182; Casey  v.  Gregory,  52  Ky.  (13 
B.  Mon.)  505,  56  Am.  Dec.  581; 
Matter  of  Eddy,  10  Abb.  N.  Cas. 
(N.  Y.)  396;  Nellis  v.  Lathrop, 
22  Wend.  (X.  Y.)  121,  34  Am.  Dec. 
285;  Mixon  v.  Coffield,  24  N.  Car. 
(2  Ired  Law)  301;  Sutliff  v.  At- 
wood,  15  Ohio  St.  186;  Alvord  v, 
Banfield,  85  Ore.  49,  166  Pac. 
549. 

66.  American  Bonding  Co.  v. 
Pueblo  Inv.  Co.  (C.  C.  A.),  150 
Fed.  17,  19  L.  R.  A.  (N.  S.)  557; 
Terstegge  v.  First  German  Mut. 
Benevolent  Soc,  92  Ind.  82,  47 
Am.  Rop.  135;   Dills  v.  Stobie,  81 


111.  202;  Armour  Packing  Co.  v. 
Des  Moines  Pork  Co.,  116  Iowa, 
723,  93  Am.  St.  Rep.  270,  89  N. 
W.  196;  Amory  v.  Kannoffsky,  117 
Mass.  351,  19  Am.  Rep.  416; 
Kiernan  v.  Germain,  61  Miss.  498; 
Underbill  v.  Collins,  132  N.  Y. 
269,  30  N.  E.  576;  Everett  v.  Wil- 
liamson, 107  N.  C.  204,  12  S.  E. 
187,  22  Am.  St.  Rep.  870;  Minne- 
apolis Co-Operative  Co.  v.  Wil- 
liamson, 51  Minn.  53,  38  Am.  St. 
Rep.  473,  52  N.  W.  98;  Frankel 
V.  Steman,  92  Ohio  St.  197,  110 
N.  E.  747;  Pratt  v.  H.  M.  Richards 
Jewelry  Co.,  69  Pa.  53,  8  Am.  Rep. 
212;  West  Concord  Mill  Co.  v. 
Hosmer,  129  Wis.  8,  116  Am.  St. 
Rep.  931,  107  N.  W.  12. 

67.  Post,    §    431. 

68.  Ante,  §  412,  note  24. 

69.  Kastner  v.  Campbell,  6 
Ariz.  145,  53  Pac.  586;  Sperry  v. 
Miller,  8  N.  Y.  336,  16  N.  Y.  407; 
Nicol  V.  Young,  68  Mo.  App.  448; 
Johnson  v.  Muzzy,  42  Vt.  708,  1 
Am.  Rep.  365;  Attorney  General 
V.   Cox,  3  H.   L.   Cas.   340. 


1492 


Real  Pkopebty. 


[§  413 


By  the  English  decisions,^^^  if  the  reversion  on  a 
sublease  is  merged  in  the  original  reversion,  the  sub- 
lessee's liability  for  rent  is  terminated,  the  same  prin- 
ciple applying  as  in  the  case  of  surrender  of  the.  sub- 
reversion.  How  far  this  doctrine  would  be  applied 
in  this  country  is  doubtful/'-'^ 

AbandoP-ment    by    tenant.      Tliat    the    tenant 


abandons  the  premises  does  not  affect  his  liability  for 
rent,*'^^  unless  the  landlord,  by  assuming  control  of  the 


69a.  Thre'r  v.  Barton,  Moore, 
94;  Webb  v.  Russell,  3  Term  Rep. 
393. 

69b.  The  doctrine  was  refer- 
red to  as  an  existing  doctrine  in 
Bailey  v.  Richardson,  66  Cal.  416, 
5  Pac.  910;  Buttner  v.  Kasser,  19 
Cal.  App.  755,  127  Pac.  811;  Kri- 
der  V.  Ramsay,  79  N.  C.  354;  Mc- 
Donald V  May,  96  Mo.  App.  236, 
69  S.  W.  1059.  See  Williams  v. 
Michigan  Cent.  R.  Co.,  133  Mich. 
448,  103  Am.  St.  Rep.  458,  95  N. 
W.  708.  That  the  sublessor  can- 
not recover  rent  after  his  sur- 
render of  his  leasehold  interest  is 
decided  in  Grundin  v.  Carter,  99 
Mass.  15;  Pratt  v.  Richards 
Jewelry  Co.,  69  Pa.  53;  and  as- 
sumed in  Buttner  v.  Kasser,  19 
Cal.  App.  755,  127  Pac.  811.  But 
as  opposed  to  the  sublessee's  im- 
munity from  rent  on  the  theory  of 
the  merger  of  the  subreversion, 
see  Hessel  v.  Johnson,  129  Pa. 
173,  5  L..  R  A.  851,  15  Am.  St. 
Rep.  716,  18  Atl.  754.  See  a  ju- 
dicious criticism  of  the  doctrine 
in  an  editorial  note  in  13  Colum- 
bia Law  Rev    245. 

69c.  Wolffe  V.  Wolff,  69  Ala. 
549,  44  Am.  Rep.  526;  Respini  v. 
Porta,  89  Cal.  464,  26  Pac.  967,  23 
Am.  St.  Rep.  488;   Miller  v.  Ben- 


ton, 55  Conn.  540,  13  Atl.  678; 
Stobie  V.  Dills,  62  111.  432;  Mar- 
tin V.  Stearns,  52  Iowa,  345,  35 
Am.  Rep.  278,  3  N.  W.  92;  Bick- 
ford  V.  Kirwin,  30  Mont.  1,  75 
Pac.  518;  Prucha  v.  Coufal,  91 
Neb.  724,  136  N.  W.  1019;  Under- 
bill V.  Collins,  132  N.  Y.  269,  30 
N.  E.  576;  Tyler  Commercial  Col- 
lege V.  Stapleton,  33  Okla.  305, 
125  Pac.  443;  Bowen  v.  Clarke, 
22  Or.  566,  29  Am.  St.  Rep.  625, 
30  Pac.  430;  Reeves  v.  Comesky, 
168  Pa.  St.  571,  32  Atl.  96;  Bar- 
low V.  Wainwright,  22  Vt.  88,  53 
Am.    Dec.    79. 

In  Clinton  Amusement  etc.  Co. 
V,  Dranow,  88  N.  J.  L.  701,  96  Atl. 
893,  the  highest  court  of  the  state 
says  that  there  was  an  abandon- 
ment, not  a  surrender,  by  the 
tenant.  This  refusal  to  recognize 
that  a  surrender  by  operation  of 
law  may  result  from  an  aban- 
donment is  caused  apparently  by 
a  failure  to  distinguish  the  tech- 
nichal  term  "surrender,"  as  ap- 
plied to  an  estate,  from  its  or- 
dinary use  as  applied  to  a  re- 
linquishment of  possession.  The 
common  law  does  not  recognize 
abandonment  as  a  method  of 
transferring  or  terminating 
estates  in  land,  and  the  statement 


<^  413]  Eent.  1493 

premises,  or  otherwise,  can  be  regarded  as  in  effect 
accepting  the  possession  at  the  hands  of  the  tenant,  so 
as  to  effect  a  surrender  by  operation  of  law,  as  else- 
where explained.^^*^  The  landlord  is,  in  such  case, 
under  no  obligation  to  lease  the  premises  to  another, 
but  may  allow  them  to  lie  vacant,  and  yet  recover  the 
installments  of  rent  as  they  accrue.*^^^  The  fact  that  the 
landlord,  upon  the  abandonment  by  the  tenant,  makes  a 
lease  to  another  will,  under  some  circumstances  and 
in  some  jurisdictions,  effect  a  surrender,  so  as  to  relieve 
the  tenant  from  liability  for  rent  thereafter  accruing,*^*' ^ 
but  in  so  far  as  it  does  not  do  this,  the  new  letting  is 
regarded  as  on  behalf  of  the  former  tenant,  so  as  to 
relieve  him  from  the  rent  under  the  original  lease  to  the 

extent  of  the  renf  received  under  the  new  lease,  and  no 
further.«9s 

Forfeiture   of  leasehold.     Upon   the   assertion 


of  a  forfeiture  by  the  landlord  for  breach  of  condition,'" 

while  he  is  entitled  to  rent  which  has  already  become 

referred     to     seems     unfortunate  Broyles,   —  Tex.   Civ.   ^,   141    S. 

The   lower  court   was,  it   is   sub-  W.  283;  Brown  v.  Hayes,  92  Wash, 

mitted,   correct   in   using   the    ex-  300,    159    Pac.    89.      See    editorial 

pression  surrender.  note  13  Columbia  Law  Rev.  79. 

69d.     Post,    §    431,    note    96    et  69f.     Post,  §  431,  note  8. 

seq.  69g.     Meyer  &  Co.  v    Smith,  33 

69e.     Bradbury    V.    Higgenson,  Ark.     627;     Marshall     v.     Grosse 

162  Cal.  602,  123  Pac.  797;  Board-  Clothing  Co.,  184  111.  421,  75  Am. 

man  Realty  Co.  v.  Carlin,  82  Conn.  St.  Rep.  181,  56  N.  E.  807;  Brown 

413,   74   Atl.    682;    Rau   v.    Baker,  v.  Cairns,  107  Iowa,  727,  77  N.  W. 

118    111.    App.    150;    Patterson    v.  478;  Oldewurtel  v.  Wiesenfeld,  97 

Emerich,  21  Ind    App.  614,  52  N.  Md.  165,  99  Am.  St.  Rep.  427,  54 

E.    1012;    Leavitt    v.    Maykel,    210  Atl.  969;  Alsup  v    Banks,  68  Miss. 

Mass    55,  96  N.  E.  51;   Merrill  v.  664,  L.  R.  A.  598,  24  Am.  St.  Rep. 

Willis.  51  Neb.  162,  70  N.  W.  914;  294,  9  So.  895,  13;  Conner  v.  War- 

Whitcomb    v.    Brant,    90   N.    J.    L.  ner,  52  Okla.  630,  152  Pac.  1116; 

245,    100    Atl.    175;     Underbill    v.  Bowen  v.  Clarke,  22  Ore.  566,  29 

Collins,   132    N.   Y.   269.   30   x\.    E.  Am.    St.    Rep.    625,    30    Pac.    430; 

576;  Nat.  Exch.  Bank  v.  Hahn,  33  Auer  v.  Penn,  99  Pa.  370,  44  Am. 

Okla.  516,  126  Pac.  554;  Milling  v.  Rep.  114. 

Becker,   96   Pa.   182:    Goldman   v.  70.     iiite,   §§   74-89. 


1494  Real  Peopertt.  [§  413 

due,"^^  he  cannot  recover  rent  subsequently  to  become 
due,  or  rather,  there  is  no  rent  subsequently  to  become 
dueJ- 

Though  there  is  no  liability  for  rent  falling  due 
after  the  enforcement  of  a  forfeiture,  a  provision  of  the 
instrument  of  lease  continuing  the  liability  of  the  lessee 
in  such  case  is  usually  regarded  as  effective.  Thus  it 
has  been  decided  that  the  parties  may  validly  stipulate 
that,  upon  the  termination  of  the  tenancy  by  re-entry 
or  equivalent  action  on  the  part  of  the  landlord,  he  may 
re-let  to  another  at  the  risk  of  the  tenant,  the  latter 
remaining  liable  for  any  deficiency  in  the  amount  so 
obtained  as  compared  with  that  reserved  by  the  original 
lease. '^•''  And  likewise,  a  provision  that  the  lessee  shall 
remain  liable  for  rent  in  spite  of  the  forfeiture  of  his 
term  will  enable  the  landlord  to  claim  from  the  former 
tenant  any  such  deficiency  in  the  amount  obtained  from 
the  new  tenant.'^  To  obtain  the  benefit  of  such  a  pro- 
vision, the  landlord  must  exercise  reasonable  diligence  to 
make  a  new^  lease  at  the  best  possible  rent.'^    In  the  case 

71.  Hartshorne  v.  Watson.  4  107  Mich.  389,  65  N.  W.  234; 
Bing.  N.  Cas.  178;  Mackubin  v.  Sharon  v.  American  Fidelity  Co., 
Whetcroft,  4  Har.  &  McH.  (Md.)  172  Mo.  App.  309,  157  S.  W.  972; 
135;  Hinsdale  v.  White,  6  Hill.  Hackett  v.  Richards,  13  N.  Y. 
(N.  Y.)  507;  McCready  v.  Linden-  138. 

born.  172  N.  Y.  400,  65  N.  E.  208;  73.     Way     v.     Reed,     6     Allen 

Rubicum    v.    Williams,    1    Ashm.  (Mass.)    364;    Woodbury  v.   Spar- 

(Pa.)  235;  Galbraith  v.  Wood,  124  rell   Print,    187   Mass.    426,    73    N. 

Minn.  210,  144  N  .W.  945;  Youngs  E.   547;    Hall   v.   Gould,    13   N.   Y. 

Mining  Co.  v.  Courtney,  219  Fed.  138;     Baldwin    v.    Thibadeau,    28 

868,  135  C.  C.  A.  538.  Abb.  N.  Cases  14,  17  N.  Y.  Supp. 

72.  Oldershaw  v.  Holt,  12  532;  Yuan  Suey  v.  Fleshman,  65 
Adol.  &   E.  590;   Watson  v.  Mer-  Ore.  606,  133  Pac.  803. 

rill,  69  C.  C.  A.  185,  136  Fed.  359;  74.     Grommes  v.  St.  Paul  Trust 

Coburn  v.  Goodall,  72  Cal.  498,  1  Co.,  147  111.  634,  37  Am.  St.  Rep. 

Am.    St.    Rep.    75,    14    Pac.    190;  248,  35  N.  E.  820.     But  in  Pusey 

Grommes  v.   St.   Paul   Trust   Co.,  v.   Sipps,   56    Pa.    Super.   Ct.   121, 

H7  111.  634,  37  Am.  St.  Rep.  248,  such   a   provision   appears   to   be 

35    N.    E.    820;     Hall    v.    Joseph  regarded  as  nugatory. 

Middleby,    Jr.,    197    Mass.    485,    83  75.     International   Trust  Co.  v. 

N.  E.   1114;    Wreford  v.  Kenrick,  Weeks,   203    U.   S.   364,  51  L.  Ed. 


•^  413:]  Eent.  1495 

of  a  stipulation  of  this  character,  continuiTig  the  lessee's 
liability  for  the  amoniit  of  the  rent  reserved  in  the  lease, 
or  for  any  excess  of  that  amount  over  that  obtainable  on 
a  new  lease,  the  continuing  liability  is  not,  properly 
speaking,  for  rent,  since  the  tenancy  to  which  the  rent 
appertained  has  ceased  to  exist.  It  is  merely  a  contrac- 
tual liability  to  the  extent  named." ^ 

As  to  whether,  when  rent  is  payable  in  advance, 
the  landlord  is  entitled  to  the  full  installment  of  rent  in 
spite  of  his  re  entry  during  the  rent  period,  the  cases 
are  not  in  accord.  On  principle,  he  having  become 
entitled  to  the  installment  on  the  rent  day,  his  right 
thereto  w^ould  properly  seem  to  be  unaffected  by  his 
subsequent  enforcement  of  a  forfeiture.'^^^ 

Taking  land  for  public  use.    Upon  the  taking 

of  the  whole  of  the  leased  land  for  public  use  under 
the  power  of  eminent  domain,  the  ownership  of  the  land 
thereby  passing  to  the  state  or  other  public  agency,  the 
liability  for  rent,  it  is  usually  agreed,  comes  to  an 
end."^^     Upon  the  taking  of  a  part  of  the  premises,  ac- 

224;  Edmands  v.  Rust  &  Richard-  ham  v.  Phillips,  1  E.  D.  Smith 
son  Drug  Co.,  191  Mass.  123,  77  (N.  Y.)  416.  See  editorial  note. 
N.  E.  713;  Woodbury  v.  Sparrell  14  Columbia  Law  Rev.  354.  Con- 
Print,  198  Mass.  1,  84  N.  E.  441.  tra,     Sutton     v.     Goodman,      194 

76.     See  Hall  v.  Gould,  13  N.  Y.  Mass.   389,  80  N.  E.   608;    Hall  v. 

127;    Grommes  v.   St.  Paul   Trust  Middeby,  197  Mass.  485,  83  N.  E. 

Co.,  147  111.  634,  37  Am.  St.  Rep.  m^;     Wreford    v.    Kenrick,    107 

248,   35   N.   E.    820;    Woodbury   v.  Mich.  389,  65  N.  W.  234. 
Sparrell  Print,  187  Mass.  426,  73  77.     Corrigan    v.    Chicago,    144 

N.    E.    547;    Stott    Realty    Co.    v.  111.  537,  21  L.  R.  A.  212,  33,  N.  E. 

United  Amusement  Co.,  195  Mich.  746;    O'Brien    v.    Ball,    119    Mass. 

684,  162  N.  W.  283.  28,    20    Am.    Rep.    299;    Lodge    v. 

76a.     That  he  is  entitled  to  the  Martin,    31    App.    Div.    13,    52    N. 

full     installment,     see     Ellis     v.  Y.  Supp.  385;   Barclay  v.  Pickler, 

Rowbotham    (1900),   1  Q.   B.  740;  38    Mo.    143;    Dyer   v.    Wightman, 

Hepp   Wall    Paper    Co.    v.    Deahl,  66   Pa.   425;    McCardell   v.   Miller, 

53   Colo.   274,   125   Pac.  491;    Gal-  22   R.   I.  96,  46  Atl.  184.     Contra, 

braith    v.    Wood,    124    Minn.    210,  Foote    v.    City    of    Cincinnati.    11 

144  N.  W.  945;  Healy  v.  McManus,  Ohio,  408,  38  Am.  Dec.  737;   Foltz 

23    How.    Pr.    (N.    Y.) ;    Cunning-  v.  Huntley,  7  Wend.  (N.  Y.)   210. 


1496  Keal  Peopeety.  [§413 

cording  to  some  decisions,  the  liability  for  rent  contin- 
ues as  before.'^^  But  there  are  other  decisions  to  the 
effect  that  in  such  a  case  the  rent  is  apportioned,  the 
tenant  being  thereafter  liable  only  for  an  amount  pro- 
portioned to  the  value  of  the  part  of  the  premises  not 
taken. "^^  These  latter  decisions  are,  it  is  conceived  en- 
tirely in  harmony  with  principle,  and  they  unquestion- 
abl}^  arrive  at  an  equitable  result.  Under  such  a  view, 
the  tenant  is,  in  the  condemnation  proceeding,  awarded 
merely  the  amount,  if  any,  by  which  the  value  of  his 
leasehold  interest,  tliat  is,  the  excess  in  the  rental  value 
over  the  rent  reserved,  is  diminished  owing  to  the 
taking.  Under  the  opposite  view,  the  tenant  is  award- 
ed the  diminution  in  the  rental  value  caused  by  the 
taking,  on  the  theory  that  lie  will  ultimately  pay  it  over 
to  the  landlord  in  the  form  of  rent,  which,  as  a  matter 
of  fact,  he  may  or  may  not  do. 

It  would  seem  that  when  the  ownership  of  either  a 
part  or  the  whole  of  the  leased  premises,  the  "fee" 
as  it  is  usually  referred  to,  is  taken  under  the  power 
of  eminent  domain,  the  liability  for  rent  is  proportion- 
ally reduced  or  extinguished,  for  the  reason  that  the 
leasehold  interest  in  the  land  taken  has  come  to  an 
end  by  reason  of  its  merger  in  the  reversion.  When  the 
reversion  and  the  leasehold  are  voluntarily  transferred 
to  a  single  person  by  their  respective  owners,  a  merger 
results,  and  the  same  thing  occurs  when  they  are  so 
transferred  involuntarily,  as  by  condemnation,  the 
fact  that  the  transferee  is  the  state  or  some  other  pub- 
lic  agency  being   immaterial.     On   the   other   hand,   in 

78.  Stubbings  v.  Village  of  597;  Board  of  Levee  Commission- 
Evanston,  136  111.  37,  11  L.  R.  A.  ers  v.  Johnson,  66  Miss.  248,  6 
839,  29  Am.  St.  Rep.  300,  26  N.  So.'  199;  Cuthbert  v.  Kuhn,  3 
E.  577;  Parks  v.  City  of  Boston,  Whart.  (Pa.)  357,  31  Am.  Dec. 
15  Pick.  (Mass.)  198;  Olson  Land  513;  Uhler  v.  Cowen,  192  Pa.  443, 
Co.  V.  Alki  Park  Co.,  63  Wash.  44  Atl.  42  (semble).  See  Dyer 
521,  Ann.  Cas.  1912D,  365,  115  v.  Wightman,  66  Pa.  427;  City  of 
Pac.  1083.  Baltimore    v.     Latrobe,     101    Md. 

79.  Biddle  v.  Hussman,  23  Mo.  621,    61   Atl.   203. 


§  413]  Bent.  1497 

the  case  of  the  taking  of,  not  the  ownership  or  "fee," 
bnt  merely  an  easement  in  the  leased  premises,  the 
question  of  the  continuing  liability  for  rent  may  be 
most  satisfactorily  solved  upon  the  theory  that 
the  dispossession  of  the  tenant  by  the  public  agency, 
for  the  purpose  of  enjoying  the  easement,  after 
the  latter 's  acquisition  thereof,  constitutes  an  evic- 
tion under  paramount  title. ^^  Such  dispossession 
is  not,  indeed,  under  a  paramount  title  if  by  paramount 
title  we  mean  only  a  legal  title  outstanding  at  the  time 
of  the  lease,  but  there  is  no  reason  for  so  confining  its 
meaning.  An  eviction  by  one  claiming  by  force  of 
the  foreclosure  of  a  mortgage  prior  to  the  lease  is 
no  doubt  an  eviction  under  paramount  title,  regardless 
of  "whether  the  mortgagee  had  the  legal  title,  and  so 
an  eviction  by  one  claiming  by  force  of  the  assertion 
of  the  paramount  power  of  the  state  may  well  be  re- 
garded as  an  eviction  under  paramount  title,  or  at 
least  so  analogous  thereto  as  to  be  governed  by  the 
same  principles. 

Destruction  of  buildings.    The  well  established 

rule  of  the  common  law  is  that  the  liability  of  the 
tenant  for  the  rent  called  for  by  the  lease  is  in  no  way 
affected  by  the  fact  that  buildings  or  improvements  on 
the  land  leased  are  wholly  or  partially  destroyed  by  some 
unforeseen  casualty,  however  much  this  may  decrease 
the  utility  of  the  premises  to  the  tenant.  This  rule  finds 
its  most  frequent  application  in  the  case  of  a  total 
or  partial  destruction  by  fire  of  buildings  on  the  leased 
premises, ^^  but  it  has  also  been  applied  when  buildings 

80.     See  Emmes  v.  Feeley,  132  81.     Baker     v.     Holtzapffel,     4 

Mass.    346;    Devine    v.    Lord,    175  Taunt.   45;    Cowell  v.  Lumley,  39 

Mass.   384,   78   Am.    St.   Rep.    502,  Cal.   151,  2  Am.  Rep.  430;    Buck- 

56  N.  E.  570;   Rhode  Island  Hos-  horn  Plaster  Co.   v.  Consolidated 

pital   Trust  Co.  v.  Hayden,  20  R.  Plaster  Co.,  47  Colo.  516,  108  Pac. 

I.    544,    42    L.    R.  A.    107,    40   Atl.  27;    Hunniston,   Keeling  &  Co.  v. 

421.  Wheeler,   175   111.  514,  67  Am.  St. 


1498 


Real  Pbopekty. 


[§  413 


or  other  improvements  on  the  premises  were  destroyed 
by  a  flood,^^  a  tempest,^^  a  hostile  army,^^  or  a 
mob.^^  Occasionally  the  common  law  rule  has  been 
disapproved,  as  bearing  with  undue  hardship  on  the 
tenant.^*' 

In  case  of  the  destruction,  even  though  total,  of 
the  bruildings  on  the  leased  land,  there  is  not  a  total 
destruction  of  the  subject  matter  of  the  lease,  and  there 
remains  something  out  of  which,  in  theory,  the  rent  can 
issue,  however  small  may  be  the  value  of  the  land  as 
compared  with  the  buildings  destroyed.  In  the  case, 
on  the  other  hand,  of  the  lease  of  a  building  alone, 
without  the  land,^"  or  of  merely  certain  rooms  in  or 
parts  of  a  building,^^  if  the  building,  or  the  part  thereof 
which  is  the  subject  of  the  lease,  is  destroyed,  it  'has 


Rep.  232,  51  N.  E.  893;  Fowler 
V.  Mott,  6  Mass.  63;  Roberts  v. 
Lynn  Ice  Co.,  187  Mass.  402,  73 
N.  E.  523;  Bowen  v.  Clemens,  161 
Mich.  493,  137  Am.  St.  Rep.  521, 
126  N.  W.  639:  Lincoln  Trust  Co. 
V.  Nathan,  175  Mo.  32,  74  S.  W. 
1007;  Fowler  v.  Payne,  49  Miss. 
"2;  Felix  v.  Griffiths,  56  Ohio  St. 
39,  45  N.  E.  1092;  Harrington  v. 
Watson,  11  Ore.  143,  50  Am.  Rep. 
465,  3  Pac.  173;  Nashville,  C.  & 
St.  L.  R.  Co.  V.  Heikens,  112  Tenn. 
378,  65  L.  R.  A.  298,  79  S.  W. 
1038;  Arbenz  v.  Exley,  Watkins 
&  Co.,  52  W.  Va.  476,  61  L.  R.  A. 
957,  44  S.   E.  149. 

82.  Smith  v.  Ankrim,  13  Serg. 
&  R.    (Pa.)   39. 

83.  Peterson  v.  Edmonson,  5 
Har.  (Del.)   378. 

84.  Paradine  v.  Jane,  Aleyn, 
26;  Robinson  v.  L'Engle,  13  Fla. 
482;  Pollard  v.  Shaffer,  1  Ball. 
(Pa.)  210. 

85.  Wagner  v.  White,  4  Har.  & 
J.    (Md.)    564. 


86.  See    Whitaker    v.    Hawley, 

25  Kan.  674,  37  Am.  Rep.  277; 
Wattles  v'.  South  Omaha  Ice  & 
Coal  Co.,  50  Neb.  251,  36  L.  R.  A. 
424,  61  Am.  St.  Rep  554,  69  N. 
W.  785;  Coogan  v.  Parker,  2  S. 
C.  255,  16  Am.  Rep.  659.  The 
question  of  the  equity  of  the  rule 
is  discussed  in  1  Tiffany,  Land- 
lord &  Ten.,  §  182  m   (1). 

87.  Ainsworth  v.  Ritt,  38  Cal. 
89,  99  Am.  Dec.  352;  Schmidt  v. 
Pettit,  8  Dist.  Col.  (1  Mc  Arth) 
179. 

88.  McMillan  v  Solomon,  42 
Ala.  356,  94  Am.  Dec.  654;  Wo- 
mack  V.  McQuarry,  28  Ind.  103, 
92  Am.  Dec.  306;  Stockwell  v. 
Hunter,  11  Mete.  (Mass.)  448,  45 
Am.  Dec.  222;    Graves  v.  Berdan, 

26  N.  Y.  498;  Moving  Picture 
Co.  v.  Scottish  etc.  Ins.  Co ,  244 
Pa.  358,  90  Atl.  642;  Paxson 
&  Comfort  Co.  v  Potter,  30  Pa. 
Super  Ct.  615;  Porter  v.  Tull.  6 
Wash.  408,  22  L.  R.  A.  613,  36 
Am.   St.   Rep.   172,   33   Pac.   965. 


§  413]  Eent.  1490 

been  nsiially  held  in  this  country  that  nothing-  remains 
from  which  the  rent  can  issue,  and  that  consequently  the 
liability  therefor  immediately  ceases.  In  England  the 
same  rule  applies  when  the  lease  is  of  an  apartment 
in  a  building  as  when  it  is  of  the  land  itself,^^  and  the 
explanation  would  seem  to  be  that  there  the  lease  of 
an  apartment  is  construed  as  including  an  interest  in 
the  soil,  from  which  the  rent  may  be  regarded  as  issuing 
even  after  the  destruction  of  the  apartment. 

The  operation  of  the  rule  that  the  liability  for  rent 
continues  in  spite  of  the  partial  or  total  destruction 
of  the  buildings  on  the  leased  premises  may  be,  and 
frequently  is,  excluded  by  an  express  provision  to  the 
contrary  in  the  instrument  of  lease.  Provisions  of 
this  character  have  quite  frequently  been  the  subject 
of  judicial  construction.^'^ 

In  a  number  of  jurisdictions  statutes  have  been 
adopted  which  have  the  effect  of  partly  or  wholly  re- 
lieving the  tenant  from  rent  in  case  of  the  destruction 
of  the  buildings,  or  any  part  thereof,  during  the  term. 
For  instance  the  Xew  York  statute'*^  provides  that 
"where  any  building  which  is  leased  or  occupied  is 
destroyed  or  so  injured  by  the  elements,  or  any  other 
cause,  as  to  be  untenantable  and  unfit  for  occupancy, 
and  no  express  agreement  to  the  contrary  has  been 
made  in  writing,  the  lessee  or  occupant  may,  if  the 
destruction  or  injury  occurred  without  his  fault  or 
neglect,  quit  and  surrender  possession  of  the  leasehold 
premises;  and  he  is  not  liable  to  pay  to  the  lessor 
or  owner  rent  for  the  time  subsequent  to  the  sur- 
render." These  statutes  have  frequently  been  before 
the  courts  for  construction.^^ 

89.  Izon  V.   Gorton,   5   Bing  N.       changing     the     language     of    the 
Cas.    501;    MarshaU    v.    Schofield,       original  act  of  1860. 

52   L.   J.   Q.   B    58.     See   Selby   v.  92.     See  cases  cited   1   Tiffany, 

Greaves,  U  R.  3  C.  P.  954.  Landlord  &  Tenant,  §  182  m   (8), 

90.  See   1  Tiffany.  Landlord  &  and  Harvey  v.  Weisbaum,  159  Cal. 
Tenant,    §    182    ni    (6).  265,  33  L.  R.  A.  (N.  S.)  540,  Ann.. 

91.  Real  Property  Law,  §   197,  Cas.    1912B,    1115,    113    Pac.    656; 


1500 


Real  Property. 


[§  413 


Eviction  by  landlord.  An  eviction  of  the  ten- 
ant by  the  landlord,  tlie  nature  of  wliicli  is  elsewhere 
discussed,^^  has  the  effect  of  suspending  the  tenant's 
liability  for  rent  thereafter  to  become  due,^^  even 
though  the  eviction  is  as  to  merely  a  part  of  the 
premises,  the  tenant  retaining  possession  of  the  bal- 
ance.*^^  Though  the  courts  frequently  refer  to  an 
eviction  by  the  landlord  as  absolutely  terminating  the 
liability  for  rent,  this  is  not  quite  correct.  It  merely 
suspends  the  liability  for  such  time  as  the  tenant  re- 
mains out  of  possession  of  the  whole  or  a  part  of  the 
premises  as  a  result  of  the  eviction.^*'  The  tenant  is 
free  from  liability  for  the  rent  becoming  due  between 


Spear  v.  Baker,  117  Md.  570,  84 
Atl.  62;  Fink  v.  Weinholzer,  109 
Minn.  381,  123  N.  W.  931;  Lin- 
'deke  v.  McArthur's  Inc.,  125  Minn. 
1,  Ann.  Cas  1915C,  600,  145  N. 
W  399;  Carley  v.  Liberty  Hat 
Mfg.  Co.,  81  N.  J.  L.  502,  33  L. 
R.  A.  (N.  S.)  545.  79  Atl.  447; 
Sayre  v.  Roseville  Motor  Co.,  85 
N.  J.  L.  10,  91  Atl.  596;  Colonial 
Land  Co  v.  Asmus,  82  N.  J.  L. 
521,  81  Atl.  827;  Acme  Ground 
Rent  Co.  v.  Werner,  151  Wis.  417, 
139  N.  W.  314. 

93.  A  life,  §  58(b). 
•  94.  Upton  V.  Townend,  17  C.  B. 
30;  Engstrom  v.  Tyler,  46  Kan. 
317,  26  Pac.  735;  Royce  v.  Gug- 
genheim, 106  Mass.  201,  8  Am. 
Rep.  322;  Osmers  v.  Furey,  32 
Mont.  581,  81  Pac.  345;  Bennett  v. 
Bittle,  4  Rawle  (Pa.)  339;  Poston 
V.  Jones,  37  N.  C.  (3  Ired.  Eq.) 
350,  38  Am.  Dec.  683;  Wolf  v. 
Eppenstein,  71  Ore.  1,  140  Pac. 
751. 

95.  Co.  Litt.  148b;  Gilbert, 
Rents,  173;  Skaggs  v.  Emerson, 
50  Cal.  3;  Frepons  v.  Grostein,  12 


Idaho,  671,  87  Pac.  1004;  Smith 
V.  Wise,  58  111.  141;  Smith  v. 
McEnany,.  170  Mass.  26,  64  Am. 
St.  R3p.  272,  48  N.  E.  781;  Kus- 
chinsky  v.  Flanigan,  170  Mich. 
245,  41  L.  R.  A.  (N.  S.)  430,  Ann. 
Cas.  1914A,  1228,  136  N.  W.  362; 
Christopher  v.  Austin,  11  N.  Y. 
216;  Galleher  v.  O'Grady,  —  N. 
H.  — ,  100  Atl.  549;  Morris  v. 
Kettle,  57  N.  J.  L.  218,  30  Atl. 
879;  Linton  v.  Hart,  25  Pa.  193, 
64  Am.  Dec.  691;  Edmison  v. 
Lowry,  3  S.  D.  77,  17  L.  R.  A. 
275,  44  Am.  St.  Rep.  774,  52  N.  W. 
583;  Briggs  v.  Hall,  4  Leigh  (Va.) 
484,  26  Am.  Dec.  326..  New  York 
Dry  Goods  Store  v.  Pabst  Brewing 
Co.,  50  C.  C.  A.  295,  112  Fed. 
381;  Contra  in  Alabama,  Warren 
V.  Wagner,  75  Ala.  188,  51  Am. 
Rep.  446;  Anderson  v.  Winton,  136 
Ala.  422,  34  So.  962. 

96.  Co.  Litt.  319a;  Maekubin  v. 
Whetcraft,  4  Har.  &  McH.  (Md.) 
135;  Smith  v.  McEnany,  170  Mass. 
26,  64  Am.  St.  Rep.  272,  48  N.  E. 
781;  Day  v.  Watson,  8  Mich.  535; 
Tiley  v.  Moyers,  43  Pa.  404. 


§  41:^:]  Eent.  1501 

the  time  of  the  eviction  of  the  tenant  and  his  restoration 
to  possession,  even  though  the  landlord  does  not  him- 
self retain  the  possession.^" 

As  to  the  effect  of  an  eviction  during  a  rent  period, 
when  the  rent  is  payable  in  advance  for  that  period,  the 
cases  are  not  agreed,  some  being  to  the  effect  that 
the  tenant  is,^^  and  others  to  the  effect  that  he  is 
not,^^  relieved  in  such  case.  It  is  somewhat  difficult  to 
comprehend  how,  after  the  tenant  has,  by  the  terms 
of  the  lease,  become  absolutely  liable  for  an  instalment 
of  rent,  he  can  be  relieved  from  such  liability  by  a 
subsequent  occurrence.  The  fact  of  such  advance  pay- 
ment could,  however,  it  seems,  be  considered  in  as- 
sessing damages  on  account  of  the  eviction,  whether  the 
claim  for  damages  is  asserted  by  way  of  set  otf  or 
in  a  separate  action.^  A  mere  trespass  or  entry  by 
the  landlord,  not  amounting  to  an  eviction,-  does  not 
affect  the  liability  for   rent.'^ 

Eviction  under  paramount  title.     The  liability 


for  the  rent  comes  to  an  end  upon  the  eviction  of  the 
tenant  from  the  entire  premises  by  one  having  para- 
mount title.*    Even  though  this  eviction  is  merely  con- 

97.  Cibel  v.  Hill,  1  Leon.  110;  2.     Ante,    §    58(b). 

Bennett  v.  Bittle,   4  Rawle    (Pa.)  3.     Roper    v.    Lloyd,    T.    Jones 

339.  148;   Hunt  v.  Cape,  1  Cowp.  242; 

98.  The  Richmond  v.  Cake,  1  Lawrence  v.  French,  25  Wend. 
App.  Dist.  Col.  447:  Hall  v.  Joseph  (N.  Y.)  443;  Bennett  v.  Bittle,  4 
Middleby,  197  Mass.  485,  83  N.  E.  Rawle    (Pa  )    339. 

1114;  Alger  v.  Kennedy,  49  Vt.  4.  Cuthbertson  v.  Irving,  4 
109,  24  Am.  Rep.  117  (semhle).  Hurlst.  &  X.  742;  Wheelock  v. 
See  Hyman  v.  Jockey  Club  etc.  Warschauer,  34  Cal.  265;  Stub- 
Co.,  9  Colo.  App.  299,  48  Pac.  671.  bings  v.  Evanstown,  136  111.  37,  11 

99.  Ryerse  v.  Lyons,  22  Up.  L  R.  A.  839,  26  N.  E.  577;  George 
Can.  Q.  B.  12;  Giles  v.  Comstock,  v.  Putney,  58  Mass.  (4  Cash.)  351, 
4  N.  Y.  270,  53  Am.  Dec.  374;  50  Am.  Dec.  788;  Home  Life  Ins. 
Hunter  v.  Reiley,  43  N.  J.  L.  480;  Co.  v.  Sherman,  46  N.  Y.  370; 
Gugel  V.  Isaacs,  21  N.  Y.  App.  Friend  v.  Oil  Well  Supply  Co.,  165 
Div.  503,  48  N.  Y.  Supp.  594.  Pa.  652,  30  Atl.  1134;   Maxwell   v. 

1.     Schienle  v.   Eckels,  227   Pa.  Urban,  22  Tex.   Civ.  App.  565,  55 

305,  76  Atl.  15.  S.  W    1124. 
2  R.  P.~2U 


1502  Eeal  Property.  [^  413 

structive,^  and  tlie  tenant  assumes,  by  attornment  or 
otherwise,  the  relation  of  tenant  to  the  paramount 
owner  and  as  such  becomes  liable  for  rent,  this  liability 
is  under  a  different  demise,  and  the  rent  is  a  different 
rent,  even  though  similar  in  amount. 

An  eviction  under  paramount  title,  like  an  eviction 
by  the  landlord,  does  not  affect  the  tenant's  liability 
for  rent  w^hich  became  due  before  the  eviction  oc- 
curred, since  this  rent  was  fully  earned.*^""^  This  would 
seem  properly  to  be  the  case  even  though  the  rent  is 
payable  in  advance,  and  the  eviction  occurs  before  the 
end  of  the  period  for  which  it  is  payable.^ 

If  the  eviction  under  paramount  title  is  partial 
merely,  that  is,  from  a  part  only  of  the  leased  premises, 
the  rent  is  apportioned  and  the  tenant  is  relieved  from 
liability  only  for  an  amount  proportioned  to  the  value  of 
that  part,^  the  rule  being  different  in  this  regard  when 
the  partial  eviction  is  under  paramount  title  from 
that  which  controls  when  it  is  by  the  landlord. 

Untenantable  condition  of  premises.    Since,  as 


before  stated,  the  landlord  is  under  no  obligation  to 
the  tenant  as  regards  the  condition  of  the  premises, 
and  their  fitness  for  the  latter 's  use  and  occupation, 
either  at  the  time  of  the  lease  or  subsequently  thereto,^" 
it  would  seem  that  the  tenant  should  not  be  relieved 

5.     Ante,  §  58(a).  v.   Coats,   77   Miss.    846,   50   L.    R. 

6-7.     2  Rolle,  Abr.,  Rent    (0.);  A.    Ill,   78   Am.    St.   Rep.    546,   28 

Grobham    v.    Thornborough,    Hob.  So.    728;    Christopher    v.    Austin. 

82;  Pepper  v.  Rowley,  73  111.  262;  11  n.  Y.  216;  Fifth  Avenue  Build- 

Fitchburg      Cotton      Manufactory  ing  Co.  v.  Kernochan,  221  N.   Y. 

Corp.    V.    Melven,    15    Mass.    268;  370,    117    N.    E.    579;     Poston    v, 

Giles  V.  Comstock,  4  N.  Y.  270,  53  Jones,  37  S.  C.   (2  Ired.  Eq.)   350, 

Am.  Dec.  374.  38      Am.      Dec.     683;      Tunis     v. 

8.  Giles  V.  Comstock,  4  N.  Y.  Grandy,  22  Gratt.  (Va.)  109: 
270,  53  Am.  Dec.  374.  But  see  Mayor  of  Swansea  v.  Thomas,  10 
ante,  this  section,  note  98.  Q.    B.    Div.    48.      But    see   Wilson 

9.  Halligan    v.    Wade,    21    111.  v.    Sale,    41    Pa.    Super.    566. 
470,  74  Am.  Dec.  108;   Fillebrown  10.     Ante,   §   51. 

V.  Hoar,   124   Mass.   580;    Cheairs 


§  413:]  Rent.  1503 

from  liabilit}'  for  rent  in  the  absence  of  an  express 
stipulation  or  a  statutory  provision  in  that  regard, 
bj'  reason  of  defects  in  the  premises.  And  that  this 
is  so  is  attested  by  the  numerous  decisions  at  common 
law  to  the  effect  that  even  the  destruction  of  the 
buildings  on  the  leased  premises  will  not  have  that 
etfect.^^  In  New  York,  however,  the  tenant  has  been 
regarded  as  relieved  from  liability  by  reason  of  the 
"untenantable"  condition  of  the  premises,  the  statute 
before  referred  to,  providing  that  the  tenant  shall  be 
relieved  from  rent  if  the  building  is  destroyed  or  so 
injured  by  the  elements  as  to  be  untenantable  and  unfit  for 
occupancy,  being  apparently  extended  to  cases  in  which 
the  building  becomes  untenantable  without  being  destroy- 
ed or  injured.^2  In  Michigan  the  tenant  has  been  relieved 
from  liability  for  rent  on  account  of  an  untenantable 
condition  existing  at  the  time  of  his  entry  under  the 
lease,  apparently  without  reference  to  any  statutes. ^^ 
Occasionally,  particularly  in  New  York,  the  existence 
of  an  untenantable  condition,  which  the  landlord  might 
have  removed  by  making  repairs  on  the  premises,  but 
which  he  fails  to  remove,  has  been  referred  to  as 
relieving  the  tenant  from  liability  for  rent,  on  the 
theory  that  it  constitutes  an  eviction  by  him,^"*  and 
there  is  a  distinct  tendency  on  the  part  of  the  courts, 
because  eviction,  by  the  conmion  law  precedents,  re- 
lieves the  tenant  from  rent,  to  apply  the  term  to  any 
condition  which  is  regarded  as  sufficient  to  relieve  the 

11.  Ante,  this  section,  notes  81-  1  Tiffany,  Landlord  &  Ten.,  § 
85.  182n(2). 

12.  Meserole  v.  Hoyt,  161  N.  13.  Leonard  v.  Armstrong,  73 
Y.  59,  55  N.  E.  274;  Vann  v.  Mich.  577,  41  N.  W.  695;  Petz  v. 
Rouse,  94  N.  Y.  401.  So  in  Voight  Brewery  Co.,  116  Mich. 
Minnesota  under  a  substantially  "^18,  72  Am.  St.  Rep.  531,  74  N. 
similar  statute.  Bass  v.  Rollins,  63  W.  651. 

Minn.    226,    65    N.   W.    348;    Dam-  14.     Tallman  v.  Murphy,  120  N. 

kroger  v.  Pearson,  74  Minn.  77,  76  Y.    345,    24    N.    E.    716;    Sully    v. 

N.  W.  960;   Kafka  V.  Davidson,  135  Schmitt,  147  N.  Y.  248,  49  Am.  St. 

Minn.   389,   160   N.   W.    1021.     See  Rep.  659,  41  N.  E.  514. 


1504  Real  Peoperty.  [<§  413 

tenant  in  this  respect. ^'^'^  So  an  eviction  has  been  said 
to  occur  in  the  case  of  the  landlord's  failure  to  furnish 
heat  to  the  apartment  leased,  not  only  when  the  lease 
contained  a  stipulation  requiring  the  lessor  to  furnish 
heat/*''  but  also  even  in  the  absence  of  such  stipulation, 
when  the  landlord's  control  of  the  heating  apparatus 
and  the  custom  of  the  community  led  the  tenant  to 
anticipate  that  heat  would  be  furnished.^"*^  The  ap- 
plication of  the  term,  however,  to  the  case  of  such  a 
mere  omission  on  the  part  of  the  landlord  is,  it  is 
conceived,  to  be  deprecated.  Even  conceding  the  de- 
sirability of  relieving  the  tenant  from  liability  for 
rent  whenever  the  premises  become  untenantable,  it  is 
undesirable  to  confuse  the  law  of  eviction  for  the 
sake  of  a  merelj^  nominal  compliance  with  the  prece- 
dents of  the  common  law.^^'' 

Breach  of  covenant.    The  question  whether  the 


breach  of  a  particular  covenant  or  stipulation  by  the 
landlord  is  a  defense  to  the  claim  for  rent,  is  properly 
a  question  merely  whether  the  stipulation  for  the  pay- 
ment of  rent  and  that  by  the  landlord  are  in  the  particu- 
lar case  to  be  construed  as  dependent  or  independent. 
The  question  has  more  frequently  arisen  in  connection 

14a.     So,    in    a    recent    case    it  Iowa,   742,   100    N.   W.    851;    Har- 

was    held    that    a    refusal    to    al-  mony  Co.  v.  Ranch.   64   111.   App. 

low   the   tenant  to   obtain   water,  386;    McSorley   v.    Allen,    36    Pa. 

in  an   emergency,   from   a  neigh-  Super.     Ct.     271;      Buchanan     v. 

boring  building,  constitUjted  an  Orange,  118  Va.  511,  88  S.  E.  52. 
eviction  relieving  him  from  rent.  14c.     Tallman    v.    Murphy,    120 

Boston     Veterinary     Hospital     v.  N.  Y.  345,  24  N.  E.  716;    Jackson 

Kiley,    219    Mass.    533,    107    N.    E.  v.   Paterno,   58   Misc.   201,   108   N. 

426.  Y.    Supp.    1073,    128    N.    Y.    App. 

14b.     Bass  V.  Rollins,  63  Minn.  Div.    474,    112    N.    Y.    Supp.    924; 

226,    65    N.    W.    348;    Minneapolis  Pakas  v.  Rawle,  152  N.  Y.  Supp. 

Co-operative    Co.    v.    Williamson,  965;   O'Hanlon  v.  Grubb,  38  App. 

51  Minn.  53,  38  Am.  St.  Rep.  473,  D.    C.    1213,    37    L.   R.   A.    (N.    S.) 

52  N.  W.  986;  Riley  v.  Pettis  1213.  Compare  Martens  v.  Sloane. 
County,  96  Mo.  318,  9  S.  W.  906;  132  N.  Y.  App.  Div.  114,  116  N.  Y. 
Lawrence  v.  Burrell,   17   Abb.   N.  Supp.  512. 

Cas.    312;    Filkins    v.    Steele,    124  14d.     Ante,  §  58(b). 


§  41^] 


Eent. 


1505 


with  a  stipulation  for  the  making  of  repairs  or  improve- 
ments by  the  landlord,  and  in  the  majority  of  cases 
the  stipulations  have  been  regarded  as  independent.^^ 
But  there  are  a  number  of  decisions  in  which,  without 
any  discussion  of  the  matter  on  principle,  the  land- 
lord's failure  to  comply  with  a  stipulation  for  the 
making  of  repairs  or  improvements  during  the  tenancy 
has  been  assumed  to  justify  the  tenant  in  abandoning 
the  premises  and  refusing  to  pay  rent.^'^'  Likewise  it 
Jias  occasionally  been  decided  that  the  landlord's  failure 
to  comply  with  his  contract  to  furnish  heat  or  power 
excuses  the  tenant  from  paying  rent.'" 

Illegality  of  business.     If  a  lease  is  knowingly 


made  for  the   purpose  of  carrying  on   an   illegal  busi- 
ness  on  the  premises,   such  as  prostitution,  gambling. 


15.  Surplice  v.  Farnsworth,  7 
Man.  &  G.  576;  Central  Appa- 
lachian Co.  V.  Buchanan,  73  Fed. 
1006;  Young  v.  Berman,  96  Ark. 
78,  34  L.  R.  A.  (N.  S.)  977,  131 
S.  W.  62;  Lewis  &  Co.  v.  Chis- 
holm,  68  Ga.  40;  Arnold  v.  Krig- 
baum,  169  Cal.  143,  Ann.  Cas. 
1916D,  370,  146  Pac.  423;  Rubens 
V.  Hill,  213  111.  523,  72  N.  E.  1127; 
Long  V.  Gieret,  57  Minn.  278,  59 
N.  W.  194;  Warren  v.  Hodges, 
137  Minn.  389,  163  N.  W.  739; 
Meredith  Mechanic  Ass'n  v. 
American  Twist  Drill  Co.,  67  N. 
H.  450,  39  Ati.  330;  Stewart  v. 
Childs  Co.,  86  N.  J.  L.  648,  L.  R. 
A.  1915C,  649,  92  Atl.  392;  Watters 
V.  Smaw,  32  N.  C.  (10  Ind.  Law) 
292;  Partridge  v.  Dykins,  28 
Okla.  54,  34  L.  R.  A.  (N.  S.)  984, 
113  Pac.  928;  Prescott  v.  Otter- 
statter,  85  Pa.  534;  Smith  v. 
Wiley,  60  Tenn.  (1  Baxt.)  418; 
Arbenz  v.  Exley,  Watkins  &  Co., 
52   W.   Va.   470,    61    L.    R.   A.    9r>7, 


44  S.  E.  149. 

In  Wise  v.  Sparks,  —  Ala.  — , 
73  So.  394,  whether  a  contract 
to  pay  rent  and  one  to  make  re- 
pairs were  dependent  was  re- 
garded as  a  question  for  the 
jury. 

16.  Bissell  V.  Lloyd,  100  111. 
214;  Marks  v.  Chapman,  135 
Iowa,  320,  112  N.  W.  817;  Hart- 
hill  V.  Cooke's  Ex'r,  19  Ky.  L. 
Rep.  1524,  43  S.  W.  705;  Pierce 
V.  Joldersma,  91  Mich.  463,  51  N. 
W.  1116;  Nelson  v.  Eichoff,  — 
Okla.  — ,  158  Pac.  370  (semble) ; 
Auer  V.  Vahl,  129  Wis.  635,  109 
N.  W.  529.  See  Taylor  v.  Finne- 
gan  ,189  Mass.  568,  2  L.  R.  A. 
(N.  S.)  973,  76  N.  E.  203;  Tif- 
fany, Landlord  &  Ten.  §  182r. 

17.  Bass  V.  Rollins,  63  Minn. 
226,  65  N.  W.  348;  Filkins  v. 
Steele,  124  Iowa,  742,  100  N.  W. 
851;  Rogers  v.  Babcock,  139 
Mich.  94,  102  N.  W.  636;  Har- 
mony  Co.    V.    Raucli,    04    111.    App. 


1506 


Keal  Property. 


[§  4i; 


or  the  sale  of  liquor  in  violation  of  law,  there  can  be 
no   recovery   of   rent.^'*^ 

Not  infrequently,  in  recent  years,  a  question  has 
arisen  as  to  the  effect,  upon  the  liability  for  rent, 
of  the  fact  that  the  lease  was  made  to  enable  the 
lessee  to  use  the  property  for  the  sale  of  intoxicating 
liquors,  and  such  use  became  invalid,  after  the  making 
of  the  lease,  by  reason  of  the  adoption  of  a  pro- 
hibitory law.  The  cases  are  ordinarily  to  the  effect 
that  legislation  of  the  character  referred  to  did  not 
terminate  the  tenancy  or  relieve  from  liability  for 
the  full  amount  of  the  stipulated  rent,^'^'*  the  decision 
in  a  number  of  these  cases  being  based  on  the  theory 
that  there  w^as  in  the  instrument  of  lease  no  reference 
to  the  liquor  business  which  called  for  construction 
as  excluding  the  sale  on  the  premises  of  articles  other 
than  liquors,  and  that  consequently  the  lessee  could 
still  utilize  the  premises. ^'*^     In  a  few  cases  a  contrary 


386;  McSorley  v.  Allen,  36  Pa. 
Super.  Ct.  271.  See  ante,  this 
section,  note  14a. 

17a.  Mitchell  v.  Campbell,  111 
Miss.  806,  72  So.  231;  Sherman 
V.  Wilder,  106  Mass.  537;  Berni 
V.  Boyer,  90  Minn.  469,  97  N.  W. 
121.  And  cases  cited,  1  Tiffany, 
Landlord  &  Ten.  §  40;  editorial 
note  26  Harv.  Law  Rev.  181. 

17b.  Lawrence  v.  White,  131  G-a. 
840,  19  L.  R.  A.  (N.  S.)  966,  6:j 
S.  E.  631;  Goodrum  Tobacco  Co. 
V.  Potts-Thompsou  Liquor  Co.,  133 
Ga.  776,  26  L.  R.  A.  (N.  S.)  498, 
66  S.  E.  1081;  Barghman  v.  Port- 
man,  12  Ky.  L.  Rep.  342,  14  8.  W. 
342;  Kerley  v.  Mayer,  10  Misc 
Rep.  718,  31  N.  Y.  Supp.  818, 
judgment  aff'd.,  155  N.  Y.  636,  49 
N.  E.  1099;  Houston  Ice  &  Brew- 
ing Co.  V.  Keenan,  99  Tex.  79,  88 
S.  W.  197;  Hecht  v.  Acme  Coal 
Co.,  19  Wyo.  18,  113  Pae.   788,  117 


Pac.  132,  34  L.  R.  A.  (N.  S.)  773, 
A.  &  E.  Ann.  Cas.  1913E,  258. 
See  the  excellent  note  on  the  sub- 
ject, by  Professor  R.  W.  Aigler, 
in   16  Mich.  Law   Rev.   534. 

17c.  O 'Byrne  v.  Henley,  161 
Ala.  620,  23  L.  R.  A.  (N.  S.)  496, 
50  So.  83;  Harper  v.  Young,  123 
Ark.  162,  184  S.  W.  447;  Shreve- 
port  Ice  &  Brew.  Co.  v.  Mandel, 
128  La.  314,  54  -So.  831 ;  San  Anto- 
nio Co.  V.  Brents,  39  Tex.  Civ. 
App.  443,  88  S.  W.  368;  Warm 
Springs  Co.  v.  Salt  Lake  City,  — 
Utah,  — ,  165  Pac.  788;  Hayton  v. 
Seattle  Brewing  &  Malting  Co.,  66 
Wash.  248,  37  L.  R.  A.  (N.  S.) 
432,    119  Pac.    739. 

So  the  premises  being  still 
available  for  other  purposes,  the 
fact  that  an  ordinance  rendered 
them  practically  unavailable  for 
the  purpose  of  a  garage,  for  which 
the  lease  was    taken,  was    regarded 


§  414]  Rent.  1507 

view,  that  the  change  in  the  law  relieved  the  lessee 
from  liability  for  rent,  was  asserted, ^"*^  this  view  being? 
sometimes  based,  however,  on  the  fact  that  by  the 
terms  of  the  lease  the  tenant  was  precluded  from  mak- 
ing any  use  of  the  premises  except  for  the  sale  of 
intoxicants. ^'^^  In  so  far  as  these  latter  cases  assume 
that  a  statement  in  the  lease  that  the  premises  are 
to  be  used  for  a  particular  purjiose  precludes  their  use 
for  another  purpose,  they  in  effect  regard  such  a 
statement,  presumably,  as  a  covenant  or  condition 
against  such  user,  since  otherwise  the  statement  as 
to  user  would  seem  to  be  inoperative. 

The  inability  to  obtain  or  renew  a  license  for  the 
sale  of  intoxicating  liquors  has  been  regarded  as  no 
defense  to  the  claim  for  rent,  although  the  lease  was 
taken  for  the  purpose  of  conducting  that  particular 
business   on  the  premises. ^''^ 

§  414.  Actions  for  rent.  When  the  person  to  whom 
rent  was  payable  had  a  freehold  interest  in  the  rent, 

as    no    defense     to    the     claim    for  "  fibn   theatre"    supplies,   a   change 

rent.     Barnett  v.   Clark,    225    Mass.  in     the   law   prohibiting   such    busi- 

185,  114    N.  E.   317.  ness     relieved     from      liability     for 

17(1.     Heart    v.     East     Tennessee  rent. 
Brewing  Co.,   121   Tenn.   69,   19    L.  17c.     Greil   Bros.  v.   Mabson,   179 

R.    A.    (N.   S.)    964,    130   Am.     St.  Ala.   444,  43  L.  R.  A.   (N.   S.)   664, 

Rep.    7.5.3,     113      S.     W.     364;    The  60,  So.  876;  Kahn   v.  Wilhelm.    US 

Stratford,   Inc.    v.   Seattle    Brewing  Ark.     239,    177    S.   W'.   403;    Briins- 

&   Malting   Co.,   94    Wash.   125,    L.  wick-Balke-Collender   Co.     v.   Seattle. 

R.    A.    1917C,    431,     162    Pac.    31;  Brewing  &   Malting   Co.,   98    Wash. 

In  Koen    v.  Fairmont  Brewing  Co.,  12,  167  Pac.   58. 
69   W.    Va.   94,    70  .9.    E.    1098,   it  17f.     Standard     Brewing     Co.     v. 

was  decided,  that  even   if  the  adop-  Weil,   129    Md.  487,    99  Atl.    661; 

tion    of    prohibition    was    otherwise  Gaston    v.    Gordon,   208    Mass.    265, 

g^c^lnd  for  relief  from  rent,  it  was  94   N.  E.  307;   Teller  v.  Boyle,  132 

not    ground   therefor    if   the  tenant  Pa.  56,  18   Atl.  1069;  Miller  v.  Mc- 

continued   in    possession.  Guire,    18    R.   I.    770,  30  Atl.   966; 

In     McCullongh     Realty     Co.     v.  Burgett  v.  Loeb,  43  Ind    App.  657, 

Laemmle    Film    Service,     —    Iowa,  88   N.  E.  346. 

— ,  165  N.  W.  33,  it  was  held  that  A    like   view   was   adopted     when 

when  there  was  a  lease  for  the  pur-  the   city   was    made   "dry"   by    an 

poKfi  of  carrying    on  a  business    in  election  held   after    the    making  of 


150S 


Eeal  Propebty. 


[^  414 


the  nonpayment  thereof  on  demand  was  considered, 
at  common  law,  a  disseisin  of  the  rent,  and  conse- 
quently the  real  action  of  novel  disseisin  was  the  proper 
form  of  proceeding  by  which  to  recover  itJ^  By 
statute,  however,  an  exception  to  this  rule  was  made  in 
favor  of  the  executors  and  administrators  of  tenants 
in  fee  of  rents,  who  were  authorized  to  sue  in  debt 
for  arrears  of  rent  due  to  their  decedents. ^^ 

Since  the  abolition  of  real  actions,  it  has,  in  Eng- 
land, been  decided  that  an  action  of  debt,^^  or  its 
equivalent,  will  lie  in  favor  of  the  owmer  of  a  rent 
charge  in  fee,  on  the  theory  that  such  an  action  did 
not  lie  at  common  law  owing  merely  to  the  fact  that 
the  higher  remedy  by  real  action  existed  during  the 
continuance  of  the  freehold.-^ 


the  lease,  the  local  option  law  un- 
der which  the  election  was  held  be- 
ing in  fca-ce  at  the  time  of  its 
making.  Houston  Ice  &  Brewing 
Co.  V.  Keenan;  99  Tex.  79,  88  S. 
W.  197. 

18.  Litt.    §§    233-240. 

19.  32  Hen.  VIII.  c.  37  (A.  D. 
1540);  Co.  Litt.  162a;  Harrison, 
Chief  Eents,  180. 

A  tenant  of  land  in  fee  simple 
Avho  has  leased  for  years  has 
been  held  not  to  be  a  tenant  in 
fee  of  the  rent  reserved  on  the 
lease  for  years,  so  that  the  stat- 
ute will  authorize  an  action  of 
debt  for  the  rent  by  his  execu- 
tors. Prescott  V.  Boucher,  3 
Barn.    &    Adol.    849. 

20.  Though  the  distinct  forms 
of  action  known  as  "  debt, ' ' 
"covenant,"  and  "assumpsit"  no 
longer  exist  in  many  states,  they 
represent,  as  connected  with  the 
recovery  of  rent,  distinctions  of  a 
substantive  character    in    regard    to 


the  right  and  basis  of  recovery, 
and  consequently,  even  in  ' '  code ' ' 
states,  a  knowledge  of  the  particu- 
lar circumstances  appropriate  to 
the  bringing  of  one  rather  than  the 
other  of  these  actions  is  most  de- 
sirable. 

21.  Thomas  v.  Sylvester,  L.  K. 
8  Q.  B.  368,  2  Gray's  Cas.  704; 
Christie  v.  Barker,  53  Law  J.  Q. 
B.  537;  Searle  v.  Cooke,  43  Ch. 
Div.  519.  See  In  re  Herbage 
Kents  [1896]  2  Ch.  811.  The  cor- 
rectness of  these  decisions  has, 
however,  been  questioned,  on  the 
ground  that  the  duty  of  paying 
rent  was,  at  common  law,  imposed 
on  the  land  alone, — a  ' '  real  obliga- 
tion,"— and  hence  the  mere  aboli- 
tion of  real  actions  could  not  make 
it  a  personal  obligation.  See  the 
learned  review  of  the  subject  by  T. 
Cyprian  Williams,  Esq.,  13  Law 
Quart.  Rev.  288,  and  the  references 
therem  to  Ognel's  Case,  4  Coke, 
48b. 


§  414]  Rent.  1509 

In  the  case  of  a  rent  for  life,  whether  rent  reserved 
on  a  lease  for  life. or  a  rent  charge  granted  for  life,  the 
tenant  of  the  land  was  regarded  as  personally  liable 
for  the  rent,  and,  while  this  personal  liability  could 
not  be  enforced  during  the  existence  of  the  life  interest 
in  the  rent,  because  temporarily  superseded  by  the 
existence  of  the  ''real"  obligation  on  the  part  of  the 
land,  upon  the  termination  of  such  real  obligation  hy 
the  termination  of  the  life  interest,  the  tenant's  per- 
sonal obligation  became  enforceable  by  the  owner  of 
the   rent,  or  his   personal   representatives.^^ 

The  right  of  one  leasing  for  years  to  sue  for 
arrears  of  rent  reserved  in  an  action  of  debt  was 
recognized  at  an  early  date  in  the  history  of  that 
action,-^  and  that  the  action  is  available  for  this  pur- 
pose has  never  been  questioned.-^  The  action  w^ll 
also   lie   for   rent  reserved  upon   a   tenancy   at   wilL"^ 

Since  the  common-law  action  of  debt  is  not  founded 
upon  a  contract,  but  is  rather  a  remedy  for  the  re- 
covery of  a  specific  sum  in  the  possession  of  the 
defendant  belonging  to  the  plaintitf,-*^  the  tenant,  in 
order  to  be  liable  therein,  need  not  have  contracted 
to  pay  the  rent,  but  he  is  made  liable  as  having  taken 

22.     Ognel's   Case,   4     Coke,   49a.  23.     2  Pollock  &    Maitland,  Hist. 

Gilbert,   Eents,  98;    Co.    Litt.    162a,  Eng.   Law,     209. 

Hargrave's    note;     13    Law     Quart.  24.     Litt.     §§     58,     72;    Co.   Litt. 

Re^-   291.  47b;    Gilbert,  Eents,   93;     Trapnall 

By  statute  (8  Anne,  c.  14,  y.  Merrick,  21  Ark.  503;  Rowland 
§  4,  A.  D.  1709),  the  right  y.  Coffin,  26  Mass.  (9  Pick.)  52; 
was  given  to  bring  an  action  of  j^^  29  Mass.  (12  Pick.)  125;  Out- 
debt  for  the  recovery  of  rent  serv-  ^^^^  ^  jy^y^^^  ^o  ^d.  536,  20  Atl 
ice    reserved    upon  a  lease  for    life,  j.^.      ^^^^^^^      ^,        Whitney,      3 

even   during  the   lease,   but    it   an-      -r,     .        .^„      ,r  ,, 

,.   ,    .  u         xu         1  Demo,     452;     McEwen     v.     Joy,     7 

plied   in    no    ease     where    the    rela-  "^ 

.• ^*     i„    11     1         1    i.         4.     T 1       Rich.    Law    (S.  Car.)    33;   Elder  v. 

tion    of     landlord    and    tenant    did  v  ^        > 

not     exist.        Webb     v.      Jiggs,     4  H^'^''^'    ^^   ^enn.    (2    Sneed)    81. 

Maule  &  S.  113.     There  are   similar  ^5.     Litt.  §    72. 

statutes    in    several    states.      See    1  26.     Ames,     Lectures     o-n     Legal 

Tiffany,  Landlord    &  Ten.  p.    1819,  History,   88. 

note   7. 


1510  Real  Property.  [§  414 

the  profits  due  by  the  land,  and,  consequently,  mere 
privity  of  estate,  as  distinct  from  privity  of  contract, 
is  sufficient  to  sustain  the  action.  Accordingly,  a 
transferee  of  the  land,  or  of  the  particular  estate 
therein  which  owes  the  rent,  is  liable  in  debt  to  the 
person  entitled  to  the  rent;-'^  and  a  transferee  of  the 
reversion  may  recover  therein  against  the  lessee  or  an 
assignee  of  the  lessee,^^  as  may  a  transferee  of  the 
rent  without  the  reversion.-'' 

Debt  will,  moreover,  lie  against  the  original  lessee, 
although  the  latter  has  assigned  his  lease,  since  the 
lessee  cannot  substitute  another  in  his  place  without 
the  landlord's  assent.  If,  however,  the  landlord  accept 
the  lessee's  assignee  as  tenant,  he  cannot  thereafter 
bring  debt  against  the  original  lessee.^''  If  the  lessee's 
interest  in  a  part  of  the  premises  is  assigned  to  another 
person,  or  in  different  parts  to  different  persons,  each 
of  such  assignees  is  liable  in  debt,  by  reason  of  privity 
of  estate,  for  a  proportional  part  of  the  rent.^^  The 
assignee  of  the  reversion  cannot  bring  debt  against  the 
original  lessee  after  the  latter 's  assignment  of  the 
term,  since  there  is,  in  such  case,  neither  privity  of 
contract  nor  of  estate."^ 

27.  Walker's  Case,  3  Coke,  22a;  rest  v.  Willard,  8  Cow.  (N.  Y.) 
Thursby  v.  Plant,  1  Saund.  237,  206;  Kendall  v.  Garland,  5  Cush. 
note    (1) ;      Howland    v.    Coffin,    9       (Mass.)    74. 

Pick.    (Mass.)     52,    12     Pick.    125,  30.     Walker's  Case,  3   Coke,  22a; 

McKeon   v.   Whitney,    3   Denio     (N.  Marsh    v.    Brace,     Cro.     Jac.     334; 

Y.)  452.  Mills  V.   Auriol,  1   H.   Bl.  433,  440; 

28.  Walker's  Case,  3  Coke,  22a;  Wadham  v.  Marlowe,  8  East,  314, 
Thnrsby  v.  Plant,  1    Saimd.  237,    1  note. 

Lev.    259;    Howland    v.    Coffin,    12  31.     Gamon    v.     Vernon,    2    Lev. 

Pick.      (Maps.)      125;      Patten      v.  231;    Curtis  v.    Spitty,   1    Bing.   N. 

Deshon,  1  Gray  (Mass.)   325;  Out-  C   760;    Harris    v.   Frank,   52   Miss, 

toun   V.  Dulin,    72  Md.  536,  20  Atl.  155;    St.   Louis  Public   Schools  v. 

134.  .  Boatmen's  Ins.   &  Trust  Co.,   5  Mo. 

29.  Williams  v.  Hayward,  1  El.  App.  91.  Compare  Daraainville  v. 
&     El.    1040;    Allen    v.    Bryan,    5  Mann,  32  N.    Y.  197. 

Barn.  &  C.  512;   Eyerson  v.   Quack-  32.     Humble   v.  Glover,  Cro.  Eliz. 

enbush,  26  N.  J.  Law,  236;  Dema-      328;    Walker's  Case,  3    Coke.  22a. 


§  414]  Kent.  1511. 

An  action  of  debt,  if  brought  by  or  against  one 
not  a  party  to  the  original  lease,  as  in  the  case  of 
an  action  by  the  assignee  of  the  lessor  or  against  the 
assignee  of  the  lessee,  being  based  on  privity  of  estate, 
has  always  been  regarded  as  a  ''local"  action,  which 
must  be  brought  in  the  county  where  the  land  lies;^' 
while,  if  brought  against  the  original  lessee  by  the 
lessor,  being  based  on  contract,  it  is  "transitory,"  and 
may  be  brought  where  the  lessee  may  be  found,  or 
where  the  contract  was  made.^* 

Action  of  covenaiit.     On  the  lessee's  covenant 

to  pay  the  rent,  usually  contained  in  the  instrument  of 
lease,  an  action  of  covenant  may  be  brought  at  common 
law,^^  and,  in  jurisdictions  where  such  form  of  action 
is  abolished,  an  equivalent  action  to  enforce  the  tenant's 
liability  on  his  covenant  will  lie. 

To  support  the  common  law  action  of  covenant 
there  must  be  a  technical  covenant  by  the  lessee,  that 
is,  the  instrument  must  be  sealed  by  him^^  since  the 
proper  action  on  a  written  agreement  to  pay  rent, 
not  under  seal,  is  assumpsit. 

An  action  by  the  lessor  against  the  lessee  on  the 
covenant  to  pay  rent  has  been  regarded  as  transitory, 
as   being  based   purely   on   contract,^"   and  the   weight 

33.  Bord  v.  Cudmore,  Cio.  Car.  Wall.  (U.  S.)  479,  20  L.  Ed.  721; 
183;  Pine  v,  Leicester,  Hob.  37;  Greenleaf  v.  Allen,  127  Mass.  248; 
Stevenson  v.  Lambard,  2  East,  575;  Union  Pac.  Ey.  Co.  v.  Chicago,  R. 
Whitaker  v.  Forbes,  L.  E.  10  C.  L  &  P.  Ey.  Co.,  164  111.  88.  Eus- 
P.  583;  Bracket  v.  Alvord,  5  Cow.  sell  v.  Fabyan,  28  N.  H.  543,  61 
(N.   Y.)    18.  Am.    Dee.   629;    Taylor    v.   I>e   Bus, 

34.  Wey  v.   Tally,    6   Mod.   194;  31  Ohio  St.   468. 

Thursby    v.  Plant,    1   Wms.    Saund.  36.     Johnson    v.    Muzzy,    45    Vt. 

(Ed.  1871)   306-308;  Bracket    v.  Al-  419,     12    Am.    Rep.    214;    Him  dale 

vord,    5    Cow.    (N.    Y.)     18;     Hen-  v.      Humphrey,      15      Conn.      433; 

wood  V.    Cheeseman,   3   Serg.    &   E.  Trustees      of     Hocking     County     v. 

(Pa.)     502;    Chitty,    Pleading    (7th  Spencer,     7   Ohio    (2nd   pt.)    143. 

K<1.)    282.  37.     Bulwcr's   Case,    7    Coke,   3a; 

35.  Thursby    v.   Plant,    1   Saund.  Wey    v.    Yally,     6     Mod.    194;      1 
237,    1      Lev.    259,    2     Gray's    Cas.  Chitty,  Pleading  (7th  Ed.)   283. 
671;    Cross     v.    United     Sitates,    14 


1512  Real  Pkopeety.  [§  414 

of  authority  is  to  the  same  effect  as  regards  an  action 
by  the  transferee  of  the  reversion  against  the  original 
lessee,  on  the  theory  that  the  privity  of  contract  is 
transferred  by  the  Statute  32  Hen.  VIII.  c.  34.2«  On 
the  other  hand,  an  action,  whether  by  the  original  lessor 
or  his  transferee,  against  the  assignee  of  the  lessee, 
has  been  regarded  as  local,  as  being  based  on  privity 
of  estate.^^ 

Assumpsit.      An    action    of    special    assumpsit 


may  be  maintained  upon  the  lessee's  express  promise 
to  pay  a  certain  sum  as  rent,  provided  such  promise  is 
not  under  seal.^° 

Under  the  code  procedure.    In  a  large  number 


of  jurisdictions,  the  common  law  forms  of  action  having 
been  abolished,  the  statements  made  above  as  to  the 
appropriate  forms  of  action  for  the  recover}-  of  rent, 
and  their  distinguishing  characteristics  in  this  regard, 
have  no  longer  any  practical  application,  though  an 
understanding  thereof  is  desirable  for  a  full  compre- 
hension of  the  common  law  view  of  rent.  Likewise,  in 
most  states,  the  common  law  distinctions,  above  re- 
ferred to,  betw-een  local  and  transitory  actions,  have 
been  superseded  by  statutes  directing  where  suit  shall 
be   brought,   as,  for  instance,   by   provisions   that   suit 

38.  Thiirsby  v.  Plant,  1  Saund.  40.  .See  eases  cited  in  article  hy 
237  1  Lev.  259,  and  notes  in  1  Prof.  J.  B.  Ames,  on  Assumpsit 
Wms.  Saund.   (Ed.  1871)   278,  307;       for    Use    and    Occupation,     in     2 

1  Cliitty,  Pleading    (7tli  Ed.)     283.      Harv.   Law   Rev.   at   pp.   378,    379. 

39.  Barker  v.  Darner,  Garth.  182 ;  Lectures  on  Legal  History,  pp. 
Stevenson  v.   Lambard,  2  East,   575,       168,    169.      And    see,    also,    Hins- 

2  Gray's  Case.  679;  Thursby  v.  dale  v.  Humphrey,  35  Conn.  443; 
Plant,  1  Saund.  237;  Bowdre  v.  Rubens  v.  Hill,  213  111.  523,  72 
Hampton,  6  Rich.  Law  (S.  C.)  208.  N.  E.  1127;  Trustees  of  Hocking 
See  Salisbury  v.  Shirley,  66  Cal.  County  v.  Spencer,  7  Ohio  (2nd 
22.3,  5  Pac.  104.  Bonetti  v.  Treat,  part)  149;  Burnham  v.  Best,  49 
91  Cal.  223,  14  L.  R.  A.  151,  27  Ky.  (10  B.  Men.)  227;  Swem  v. 
Pa«.  612;  Hiutze  v.  Thomas,  7  Sharretts,  48  Md.  408;  Johnson  v. 
Md.  346,  to  the  effect  that  the  Muzzy,  45  Vt.  419.  12  Am.  Rep. 
action   is    based    on    privity   of     es-  214. 

tate. 


§  414]  Kent.  1513 

shall  be  brought  in  the  county  of  the  defendant's  resi- 
dence, or  where  he  may  be  served  with  process,  and  so 
if  the  rent  is  payable  in  a  certain  county,  the  venue 
may  be  determined  by  a  provision  that  an  action  on  a 
contract  shall  be  brought  at  the  place  of  performance. 

Remedy   in   equity.     Equity   will   occasionally 


take  jurisdiction  of  a  proceeding  by  the  landlord  for  the 
recovery  of  rent  on  the  ground  that  the 
remedy  at  law  is  inadequate.  One  case  in  which  equity 
thus  takes  jurisdiction  is  where  the  tenant  has  made  a 
sublease,  and  the  tenant  is  insolvent,  in  which  case 
the  court  will  direct  the  subtenant  to  pay  the  rent  to 
the  chief  landlord,  on  the  theory  that  the  rent  should 
be  discharged  out  of  the  profits  of  the  land.^^  This 
theory,  that  the  profits  of  the  land  are  properly  ap- 
plicable to  the  pa^anent  of  rent,  and  that  equity  alone 
can  enforce  such  application,  w^ould  seem  to  be  the 
grounds  on  which  the  jurisdiction  of  equity  should  be 
sought  and  sustained.  It  cannot,  however,  be  said  that 
this  reason  for  the  assumption  of  jurisdiction  by  equity 
clearly  apjoears  from  the  cases,  such  jurisdiction  having' 
ordinarily  been  sustained  on  the  ground  that  the  remedy 
by  distress  was  for  some  reason  not  available  in  the  par- 
ticular case.'*-  That  the  amount  of  rent  due  and  pay- 
able by  defendant  is  uncertain,  either  because  he  is 
tenant  of  liut  a  part  of  the  land  subject  to  the  lease*^ 
or  for  otlier  reasons,^^  has  also  been  regarded  as 
ground  for  the  interposition  of  equity. 

41.  Goddaid  v.  Keate,  1  Vein.  598;  Leeds  v.  Powell^  1  Ves.  Sr. 
87;  Haley  v.  Boston  Belting  Co.,  171.  See  article  by  Prof.  C.  C. 
140  Mass.  73,  2  N.  E.  785;  For-  Langdell,  10  Harv.  Law  Rev.  93. 
rest  V.  Durnell,  86  Tex.  647,  26  43.  Swedesborough  Church  v. 
S.  W.  481;  Otis  v.  Couway,  114  N.  Shivers,  16  N.  J.  Eq.  (1  C.  E. 
Y.  13,  20   N.  E.  628;   Kemp   v.  Sail  Green)  453. 

Antonio  Catering  Co.,  118  Mo'.  App.  44.     Livingston     v.    Livingston,    4 

134,  93    S.  W.  342.  .Johns  Ch.   (N.  Y.)  287,   8  Am.  Dec. 

42.  Collet  v.   Jacciiios,  1  Cli.  Cuf.  .^62;    Van  Rensselaer  v.  Layman,  39 
120;   Cocks  V.    Foley,    1  Vern.  359;  Ilarv.  Pr.    (N,    Y.)     9.     See   2   Tif- 
North    V.    Strafford,    3    P.    Wras.  iany.  Landlord  &   Ten.  §  292. 
148;    Benson    v.     Baldwin,    1    Atk. 


1514  Real  Peoperty.  [^  414 
Action  for  use  and  occupation.     At  common 


law,  as  above  stated,  assumpsit  would  lie  upon  a  con- 
tract not  under  seal  for  the  payment  of  rent.^-^  And 
it  would  also  lie  upon  a  contract  to  pay  a  reasonable 
compensation  for  the  use  and  occupation  of  land,  pro- 
vided no  certain  rent  was  reserved.^^  The  statute 
11  Geo.  2,  c.  19,  §  14,  authorised  a  landlord,  provided 
the  demise  is  not  by  deed,  that  is,  is  not  under  seal, 
to  recover  a  reasonable  satisfaction  in  an  action  on 
the  case  for  the  use  and  occupation  of  the  land, 
even  though  a  certain  rent  is  reser^-ed  and  there  is 
no  proof  of  an  express  promise.  A  statute  of  a 
similar  character  has  been  enacted  in  a  number  of 
states,^"  while  in  several,  upon  w^hat  appears  to  be 
a  somewhat  questionable  reading  of  the  earlier  English 
decisions,  it  has  been  decided  that  a  landlord  may 
recover  in  such  an  action  apart  from  a  statute  bearing 
on  the  subject.^ ^ 

In  this  action,  the  technical  name  of  which  is 
indebitatus  assumpsit  for  use  and  occupation,  rent 
as  such  is  not  recovered,  but  merely  a  reasonable  satis- 
faction for  the  use  of  the  premises;  and  the  recovery 
is  based  on  the  theory  that  a  contract  to  pay  such 
reasonable  satisfaction  is  to  be  inferred  from  the 
circumstances  in  conformity  with  the  intention  of  the 
parties.  If  one  person  permits  another  to  take  and 
retain  possession  of  his  land,  it  is,  in  the  ordinary 
case,  a  reasonable  inference  that  the  former  expects 
the   latter   to   pay   the   reasonable   value   of   such  pos- 

45.  Ante,   this    ?ection,    note    40.  Marsh)     255,     23     Am.    Dec.    404; 

46.  Ames,  Assumpsit  for  Use  Dwight  v.  Cutler,  3  Mich.  566,  64 
and  Occupation,  2  Harv.  Law  Eev.  Am.  Dec.  105;  Heidelbach  v.  Slad- 
379,  Lectures  on  Legal  History,  er,  1  Handy  (Ohio)  457;  Eppes 
169.  V.    Cole,    4    Hen.    &   M.    (Va.)    161, 

47.  .See  2  Tiffany,  Landlord  &  4  Am.  Dee.  512.  That  it  does  not 
Ten.  p.   1856.  lie  apart  from  statute,    see  Bell  v. 

48.  Gunn  v.  Seovil,  4  Day  Ellis'  Heirs,  1  Stew.  &  P.  (Ala.) 
(Conn.)  228,  4  Am.  Dec.  208;  294;  Byrd  v.  Chase,  10  Ark.  602; 
Crouch    V.   Briles,  30   Ky.    (7   J.   J.  Long  v.   Bonner,   33   N.  C.  27. 


§  414] 


Rent. 


1515 


session  or  occupation,  and  that  the  latter  expects  to 
pay,  and  the  law  recognizes  the  reasonableness  of  such 
inference  and  enforces  a  contract  so  inferred.  It  is 
in  this  sense  only  that,  as  is  frequently  stated,  "the 
law  implies  an  obligation"  to  pay  the  value  of  the 
use  and  occupation,  the  obligation  not  being  im))lied 
by  law  witliout  reference  to  the  presumed  intentions 
of  the  parties,  as  in  the  case  of  quasi  contract. 

To  sustain  an  action  for  use  and  occupation  the 
relation  of  landlord  and  tenant  nmst,  ordinarily  at 
least,  exist  between  the  parties.^^  And  consequently 
it  will  not  lie  in  favor  of  the  owner  of  land  against  a 
person  who  has  entered  thereon  as  a  trespasser.^'' 
Occasionally  a  state  statute  has  been  construed  as 
authorizing  such  an  action  against  a  trespasser,^^  and 
in  several  states,  where  the  line  between  the  different 
forms  of  action  has  been  obscured  by  statutory  enact- 
ments, a  trespasser  may,  it  seems,  be  made  liable  for 
the  rental  value  of  land  under  allegations  of  use  and 
occupation  by  him.^-     Such  an  action  cannot  however 


49.  Carpenter  v.  Uuited  States, 
84  U.  S.  (17  Wall)  489,  21  L.  Ed. 
680;  Hamby  v.  Wall,  48  Ark.  135, 
3,  Am.  St.  Rep.  218,  2  S.  W.  705; 
Emergon  v.  Weeks,  58  Cal.  4.39; 
Cambridge  Lodge  v.  Routh,  163 
Ind.  1,  71  N.  E.  148;  Jones  v. 
Donelly,  221  Mass.  21.3,  108  N.  E. 
106.3;  Hogsott  v.  Ellis,  17  Midi. 
351;  McFar'an  v.  Watson,  3  N. 
Y.  286;  Aull  Say.  Bank  v.  AuU's 
Adm'r,  80  Mo.  199;  Rosenberg  v. 
Sprecher,  74  Neb.  176,  103  N.  W. 
1045;  Clark  v.  Clark's  Estate,  58 
Vt.   527,  3  Atl.  508. 

50.  Pico  V.  Pheliin,  77  Cal.  86, 
19  Pac.  186;  Latlirop  v.  Standard 
Oil  Co..,  83  Ga.  307,  9  S.  E.  1041; 
Carrigg  v.  Meehanics'  Bank  of 
Providence,  136  Iowa,  261,  111  N. 
W.  329;  Stockett  v.  Watkins' 
Adm'rs,    2    Gill.    &   J.    (Md.)    326, 


20  Am.  Dec.  438;  Emery  v.  Emery, 
87  Me.  281,  32  Atl.  900;  Inman 
V.  Morris,  63  Miss.  347;  Brolasky 
V.  Feiguson,  48  Pa.  434;  Galves- 
ton Wharf  Co.  v.  Gulf  C.  &  .S.  F. 
R.  Co.,  72    Tex.  454,  10  S.  W.  537. 

51.  Dell  V.  Gardner,  25  Ark. 
134;  Missouri  Pac.  R.  Co.  v.  Atchi- 
son, 43  Kan.  529,  23  Pac.  610; 
Newberg  v.  Cowan,  62  Miss.  570; 
Earl  V.  Tyler,  36  Okla.  179,  128 
Pac.    269. 

52.  Sec  Lindt  v.  Lindcr,  117 
Iowa,  110,  90  N.  W.  596;  Hidden 
V.  Jordan,  57  Cal.  184;  Lamb  v. 
Lamb,  146  N.  Y.  317,  41  N.  E. 
26;  Long  Bell  Lumber  Co.  v. 
Martin,  11  Okla.  192,  66  Pac.  328; 
Olson  v.  Huntamer,  6  S.  Dak.  364, 
55  Am.  St.  Rep.  844,  61  N.  W. 
479. 


1516  Real  Property.  [^  415 

be  regarded  as  the  equivalent  of  assumpsit  for  use 
and  occupation,  but  is  more  properly  an  action  of 
trespass, for  mesne  profits,  according  to  the  common 
law   nomenclature. 

Forfeiture  of  leasehold.     The  landlord  is,  by 

tlie  express  terms  of  the  lease,  frequently  given  the  right 
to  re  enter  on  the  land,  and  thereby  terminate  the 
tenant's  interest,  in  case  of  nonpayment  of  rent, 
such  a  stipulation  rendering  the  tenant's  estate  one 
on  condition.^^  In  a  number  of  states,  apart  from  any 
such  provision  in  the  lease,  the  landlord  is  authorized 
to  resume  possession  upon  the  tenant's  failure  to  pay 
rent,  such  a  provision  being  most  frequently  intro- 
duced as  a  part  of  a  statute  authorizing  summary 
proceedings,  and  the  non  payment  of  rent  being  named 
as  one  of  the  grounds  for  such  a  proceeding,  while 
in  a  few  states  the  non  payment  of  rent  is  made  a 
ground  of  forfeiture,  without  any  reference  to  the 
mode  of  proceeding  by  which  the  forfeiture  may  be 
enforced.^^ 

§  415.  Distress  for  rent.  As  before  stated,  the 
remedy  by  distress  existed  at  common  law  in  the 
case  of  a  rent  service,  unless  the  rent  and  the  seignory  or 
reversion  became  separated,  and  also  in  the  case  of 
a  rent  charge. -^^  In  England  the  right  of  distress  has 
been  given  by  statute  in  the  case  of  all  rents,  and 
consequently  rents  seek  no  longer  exist  there  as  a 
distinct  class. ^"^  The  question  whether  this  statute 
is  in  force  in  any  particular  state  has  been  seldom 
passed  upon,^'''  this  being  a  natural  result  of  the  in- 
frequency  of  rents  other  than  rents  service  reserved 
on  leases  for  years. 

53.  Ante,    §§    74-89.  57.     In   Illinois    the   English   sta- 

54.  2    Tiffany,  Landlord  &   Ten.       tute    was,    in     a    quite    early    deci- 
§§    193a,  274d,    e.  sion,  recognized  as  in  force   (Penny 

55.  Ante,    §  404.  v.    Little,    4  111.  301),    while  a  dif- 

56.  4  Geo.  2,  c.  28,  §  5  (A.  D.       ferent     view    was    taken     in    New 
1731). 


§  415]  Eent.  1517 

The  remedy  by  distress  lias  not  been  favored  in  this 
country,  it  being  often  regarded  as  affording  opportunity 
for  injustice  and  oppression,  and  as  unfairly  dis- 
criminating in  favor  of  a  particular  class  of  creditors. 
In  some  states  it  has  been  abolished  by  statute,^^  and 
in  some  the  courts  have  refused  to  recognize  it  as  an 
existing  part  of  the  law.^''  The  remedy,  under  its 
common-law  name,  still  exists  in  a  number  of  states; 
but  even  in  those  states  it  is  quite  frequently  modified  by 
statutory  provisions,  the  general  tendency  of  which 
is  more  or  less  to  withdraw  the  control  of  the  pro- 
ceedings from  the  ■  landlord  and  to  vest  it  in  public 
officials,  thus  assimilating  it  to  the  process  of  attach- 
ment.^^ ^  In  New  England  the  remedy  of  attachment 
on  mesne  process  has  superseded  that  of  distress. 

Originally,  the  remedy  by  distress  merely  enabled 
the  landlord  to  seize  the  chattels  on  the  land,  and  hold 
them  as  a  pledge  for  the  payment  of  rent  ;^°  but  by  stat- 
ute the  landlord  was  authorized  to  sell  the  goods  levied 
upon,  and  to  apply  the  proceeds  on  the  rent,*^^  the 
proceeding  being  thus  changed  from  one  to  secure  the 
rent  to  one  to  collect  it.  Furthermore,  the  seizure  of 
the  goods  was  formerly  made  by  the  landlord  himself; 
but  at  the  present  day,  in  most  jurisdictions,  the  actual 
levy  is  made  by  an  officer  of  the  law.'''^ 

It  has  been  quite  frequently  stated  that  to  sup- 
port  a   distress   the   rent   reserved  must  be  certain   or 

York      (Cornell    v.    Lamb,    2    Cow.  59a.     See  2  Tiffany,  Landlord  & 

^52).  Ten.    §§     325-346.     The   gist   of  the 

58.  2  Tiffany,  Landlord  &  Ton.  statutory  provisions  in  the  various 
§   325.  states     are     conveniently    presented 

59.  Folmar  v.  Copeland,  57  Ala.  in  a  note  in  2  Cornell  Law  Quart. 
588;  Herr  v.  Johnson,  11  Colo.  Kev.  at  p.  357,  by  D.  R.  Perry, 
393,  18  Pac.  342;  Crocker  v.   Mann.  Esq. 

3  Mo.  472,  26  Am.   Dec.  684;  Bohni  60.     Co.      Litt.     47;     :;     P.hu-kst. 

V.    Dunphy,    1    Mont.    333;    Deaver  Comm.  614. 

V.  Rice,    20    N.    Car.    (4  Dev.    &  B.  61     2  Wm.  &  Mary  c,  5    (A.  D. 

Law)    567,  34    Am.  Dec.  69;   Smith  1690). 

V.    Wheeler,    4    Okla.    J38,    44    Pac.  62.     2   Tiffany,   Landlnrd   &    Ten. 

203.  §   336. 
2  R.  P.— 21 


1518  Real  Property.  ["§>  415 

capable  of  reduction  to  a  certaiiity,^^  and  occasionally 
reasons  have  been  stated  for  this  requirement,  con- 
nected with  the  method  of  proceeding  at  common  law.®^ 
But,  it  is  conceived,  the  true  and  sufficient  ground  for 
the  requirement  of  a  certain  rent  as  a  basis  for 
distress  is  that,  as  before  stated,*^^  there  is  no  such 
thing  as  a  rent  which  is  not  certain  or  capable  of  re- 
duction to  a  certainty.  The  statement  of  this  require- 
ment has  occasionally  been  made  as  a  justification  for  a 
holding  that  there  was  no  right  of  distress  although 
there  was  a  right  of  recovery  for  use  and  occupation."® 
The  reasonable  value  of  the  use  and  occupation,  though 
recoverable  by  action,  is  not  rent,  and  it  is  for  this 
reason,  rather  than  because  the  amount  is  uncertain, 
that  it  cannot  be  recovered  by  distress. 

Who  may  distrain.    Since  the  right  of  distress 

is  based  upon  the  relation  of  tenure,  a  distress  for  rent 
reserved  on  a  lease  can  be  made  only  by  one  having  the 
reversion,  that  is,  the  landlord.*^'  Consequently,  at 
common  law,  a  lessor  who  has  disposed  of  the  re- 
version, retaining  the  rent,  cannot  distrain,*^^  though 
he  may  do  so,  it  seems,  in  some  states,  by  force  of  a 
statutory  provision  giving  the  right  of  distress  to 
persons  entitled  to  rent,  as  he  might  in  any  state  in 
which  the  English  statute,^ ^^  giving  the  right  in  the 
ease  of  a  rent  seek,  may  be  regarded  as  in  force. 

63.  Eegnart  v.  Porter,  7  Bing.  Fla.  611;  Tiflft  v.  Verden,  19  Miss. 
451;  United  States  v.  Williams,  2  (11  Smedes  &  M.)  153;  Valentine 
Cranch.  C.  C.  438,  Fed.  Cas.  No.  v.  Jackson,  9  Wend.  (N.  Y.)  302; 
16,710;  Smoot  v.  Strauss,  21  Fla.  Wells  v.  Hornish,  3  Pen.  &  W. 
611;     Marr    v.    Eay,    151     111.    799,  (Pa.)    31. 

26   L.  K.    A.   799,   37   N.   E.    1029;  67.     Sims    v.    Price,   123   Ga.    97, 

Briscoe  v.  McElween,  43  Miss.  556;  50    S.   E.   961;    Marr    v.   Eay,     151 

Smith     V.    Fyler,     2    Hill.    (N.    Y.)  111.  340,  26   L.  R.  A.  799,  37   N.  E. 

G48;     Jocks    v.   Smith,   1    Bay,    (S.  1029;    Patty    v.    Bogle,     59     Miss. 

Car.)    315.  491;    Grier    v.   McAlarney,   148   Pa. 

64.  .See  2  Tiffany,  Landlord  &  587,  24  Atl.  119;  McKenzie  v. 
Ten.  §    327d.  Eoper,  2  Strob    (S.  Car)   306. 

65.  Ante,  §  411,   note  99.  68.     Litt.    §   226. 

66.  Stayton  v.  Morris,  4  Har.  68a.  Ante,  this  section,  note  56. 
(Dol.)     224;    Smoot   v.   Strauss,'   21 


§  415]  Eent.  1519 

At  common  law  the  executor  or  administrator  of 
a  deceased  owner  of  a  rent  had  no  right  to  distrain 
for  rent  which  belonged  to  him  as  having  accrued  in  the 
lifetime  of  such  owner,  but  by  St.  32  Hen.  VIII.  c.  37,  § 
1,  the  right  of  distress  was  given  to  the  executors  and 
administrators  of  tenants  in  fee,  fee  tail,  or  for 
term  of  life.*'^  This  statute  has,  however,  been  held  to 
give  no  right  of  distraint  to  the  executor  of  a  tenant 
of  land  in  fee  who  demised  the  land  for  years,  re- 
serving a  rent,'^  and,  on  this  construction  of  the  statute, 
an  executor  or  administrator  has,  in  jurisdictions  where 
there  is  no  statute  to  the  contrary,  no  right  to  collect 
by  distress  rent  due  by  a  tenant  of  his  decedent  under 
a  lease  for  years.  There  are  in  a  few  states  statutes 
expressly  giving  the  right  of  distress  to  the  executors 
or  administrators  of  a  deceased  landlord,  or  giving 
them  the  same  remedies  for  the  collection  of  rent  as 
the  decedent  had. 

Chattels  subject  to  distress.     All  chattels  on 


the  demised  premises  are,  generally  speaking,  liable  to 
be  distrained  upon,  and  the  fact  that  they  belong  to  a 
person  other  than  a  party  to  the  lease  is  immaterial.'^ ^ 
In  some  states,  however,  by  statute,  a  stranger's  prop- 
erty is  exempt  from  distress.^^  Things  which  are  part 
of  the  freehold,  as  fixtures,  cannot  be  destrained  upon."-' 
Things  which  are  liable  to  be  injured  by  keeping,"^ 
and    also,    it    seems,    things    not    readily    capable    of 

69.  Co.   Litt.   lG2a.  hanc,    4  ni.  App.    (4  Bradw.)   460; 

70.  Prescott  v.  Boucher,  .3  Barn.  Reynolds  v.  Shuler,  5  Cow.  (N.  Y.) 
&  Adol.  849;  Jones  v.  .Tones,  ?,  323.  In  Furbush  v.  Chappell,  105 
Barn.    &   Adol.   967.  Pa.   St.   187,  it  is  deciued    that   fix 

71.  Gilbert,  Distresses,  3;{;  tures  removable  by  a  tenant  are 
Bradley,  Distresses,  73;  3  Blackst.  distrainable,  a  view  which  ac- 
Comm.   8.  eords  with  the  rule  existing  in  that 

72.  2  Tiffany,  Landlord  &  Ten.  state  that  removable  fixtures  arc 
§    32Sa(9).  personalty.     See   ante,  §    272(d). 

73.  Co.  Litt.  47b;  Gilbert,  Dis-  74.  2  Blackst.  Conim.  101;  Mor- 
tresses,  42;   Turner    v.   Cameron,  L.  ley  v.  T'inchcomlio,    2   F.ych.  lOl. 

R.   5,   Q.    B.   .30;    Kassing    v.    Keo- 


1520  Eeal  Property.  [^  415 

identification,  such  as  loose  pieces  of  money/ ^  are  not 
subject  to  distress.  Things  in  a  person's  actual  use  or 
possession,  such  as  a  horse  which  he  is  riding,  or  a 
machine  at  wliich  he  is  working,  are  also  exempt,  in 
order  that  a  breach  of  the  peace  may  not  be  caused  by 
an  attempt  to  distrain  thereon.'^  Implements  or  uten- 
sils of  one's  trade  or  profession,  such  as  the  axe  of  a 
carpenter  or  the  books  of  a  scholar,  are  exempt,  if 
there  be  other  things  on  the  premises  sufficient  in 
amount  to  satisfy  the  distress;  and  beasts  used  for 
working  a  farm,  and  sheep  thereon,  are  in  the  same 
way  conditionally  exempt."^^ 

Goods  which  are  in  the  custody  of  the  law,' ^  as 
when  they  have  been  levied  upon  under  execution,'^^ 
or  attachment,^'^  are  not  distrainable.  The  rigor  of 
this  rule  is,  however,  considerably  alleviated,  in  Eng- 
land and  in  some  states,  by  reason  of  statutes  securing 
to  the  landlord,  as  against  an  execution  levy,  arrears 
of  rent  to  the  amount  of  one  year's  rent.^^ 

The  most  important  class  of  exemptions  from  dis- 
tress consists  of  those  in  favor  of  trade  or  commerce, 
being  generally  of  those  things  belonging  to  a  third 
person  which  are  temporarily  on  the  leased  premises 

75.  1  Rolle's  Abr.  667;  Bac.  79.  Herron  v.  Gill,  112  111.  247; 
Abr.,   Distress    (B).  Craddock   v.    Riddlesbarger,    32   Ky. 

76.  Co.  Litt.  47a;  Simpson  v.  (2  Dana)  205;  Van  Horn  -v. 
Hartopp,  Willes,  512;  Beall  v.  Goken,  41  N.  J.  L.  499;  SuUivau 
Beck,     3    Cranch    C.    C.    666,    Fed.  v.   Ellison,   20   S.    C.    481. 

Gas.     No.     1,161;    Couch     v.    Craw-  80.     Thomson      v.      Baltimore     & 

ford,  10   Up.  Can.  C.   P.  491.  Susquehenna     Steam    Co.,     33     Md. 

77.  Co.  Litt.  47b;  3  Blackst.  312;  Pierce  v.  Scott,  4  Watts  & 
Comm.  9;  Jenner  v.  Yolland,  6  S.  (Pa.)  344;  Ayres  v.  Depras, 
Price    3.  -  Speers  Law  (S.  Car.)   367;    Meyer 

78.  Co.     Litt.     47b;     Eaton     v.  v.   Oliver,  61   Tex.  584. 

Southby,    Willes,     131;     Bowser     v.  81.     The   English   statute   is   that 

Scott,    8   Blackf.     (Ind.)    86;    Mul-  of  8  Anne  c.  14,  §  1.    The  various 

herin   v.    Porter,    1     Ga.    App.    153,  decisions  upon  this  and  the  more  or 

58    S.   E.  60;   Karns  v.   McKinney,  less  similar    state    statutes  are  dis- 

78    Pa.    387;    Cooley   v.   Perry,     34  cussed    in    1    Tiffany,    Landlord    & 

S.    C.     554,   13     S.    E.   853;    Meyer  Ten.   §  183. 
V.    Oliver,    fil    Tex.    584. 


<^  415J 


Kent. 


1521 


for  the  purposes  of  the  business  there  conducted,  as 
in  the  case  of  raw  material  left  there  to  be  worked  up,^^ 
or  goods  placed  there  for  purposes  of  sale*-*  or  for 
safe  keeping. ^^  For  a  similar  reason,  it  seems,  the 
property  of  a  guest  at  an  inn  are  exempt.^^ 

Things  not  on  the  premises.    Apart  from  stat- 


ute,^^  only  goods  upon  the  demised  premises  can  be 
distrained  for  the  rent  therof,  or,  as  it  is  frequently 
expressed,  the  distress  must  be  made  upon  the  prem- 
ises.^^  In  at  least  three  states  the  law  in  this  regard 
has  been  changed  by  statutes  allowing  the  goods  of  the 
tenant  to  be  distrained  upon  wherever  located.^^ 
There   are   also,   in   a  number   of   states, ^^   as   in   Eng- 


82.  Co.  Litt.  47a;  Bead  v.  Bnr- 
ley,  Cro.  Eliz.  596;  Knowles  v. 
Pierce,  5  Houst.  (Del.)  178;  Hos- 
kins  V.  Paul,  9  N.  J.  L.  110,  17 
Am.  Dec.   455. 

83.  MeCreery  v.  Claflin,  37  Md 
435,  11  Am.  Rep.  542;  Connali  v 
Hale,  23  WemL  (N.  Y.)  46 
Brown  v.  Stackhouse,  155  Pa.  582 
35  Am.  St.  Eep.  908,  26  Atl.  669 
Walker  v.  Johnson,  4  McCord  (S 
Car.)     552. 

84.  Miles  v.  Furber,  L.  E.  8, 
Q.  B.  77;  Beall  v.  Beck,  3  Cranch. 
C.  C.  666,  Fed.  Cas.  No.  1,161; 
Owen  V.  Boyle,  22  Me.  47;  Brown 
V.  Sims,  17  Serg.  &  R.   (Pa.)  138. 

85.  3  Blackst.  Comm.  8;  Brad- 
ley, Distresses,  144;  Gorton  v.  Falk- 
ner,  4  Term  Rep.  567;  Lyons  v. 
Elliott,  1  Q.  B.  Div.  210;  Beall  v. 
Beck,  3  Cranch  C.  C.  666,  Fed. 
Cas.  No.  1,161 ;  Karns  v.  McKiu- 
ney,  74  Pa.  389;  Kellogg  News- 
paper Co.  V.  Peterson,  162  111.  158, 
53  Am.  St.  Rep.  300,  44  N.  K. 
411;  Elford  v.  Clark,  3  Brev.  (S. 
Car.)    88. 

Ill  owe  jurisdiction  tilings  lie- 
longing  to    a   permnnent    boardor  at 


an  inn  or  boarding  house  have 
been  regarded  as  exempt.  Riddle 
V.  Welden,  5  Whart.  (Pa.)  9. 
Contra,  Trieber  v.  Knabe,  12  Md. 
491,     71    Am.   Dec.    607. 

86.  Except  in  the  case  of  cattle 
driven  off  the  premises  in  the 
sight  of  the  landlord  or  his  agent 
when  about  to  distrain.  Co.  Litt. 
161a;  2  Co.  Inst.  132;  Bradby, 
Distresses,  94.  Or  when  there  is 
an  express  stipulation  allowing  dis- 
tress on  things  belonging  to  the 
lessee  ofP  the  premises.  In  re 
Roundwood  Colliery  Co.  [1897]  1 
Ch.  373;  Dinger  v.  McAndrews,  10 
Pa.   Dist.   R.    221. 

87.  Co.  Litt.  161a;  White  v. 
Hoeninghaus,  74  Md.  127,  21  Atl. 
700;  Crocker  v.  Mann,  3  Mo.  472, 
26  Am.  Dec.  684;  Weiss  v.  John, 
37  N.  J.  L.  93;  Pemberton  v.  Van 
Rensselaer,  1  Wend.  (N.  Y.)  307; 
Clifford  V.  Beems,  3  Watts.  "(Pa.) 
246;  Mosby  v.  Leeds,  3  Call  (Va.) 
439. 

88.  2  Tiffany,  Landlord  &  Ten- 
ant,   §   3281(4). 

89.  Id,    §   3281(3). 


1522  Real  Property.  [§  416 

land,^"  statutes  authorizing  a  distress  on  the  tenant's 
goods  and  chattels  if  removed  by  him  from  the  premises 
in  order  to  prevent  a  distress  thereon.  And  in  several 
states  the  same  end  of  realizing  from  chattels  re- 
moved from  the  premises,  or  liable  to  be  removed,  is 
secured  by  statutory  provisions  for  attachment  for 
rent.91 

§  416.  Lien  for  rent.  In  quite  a  number  of  states 
there  are  statutes  subjecting  chattels  or  crops  upon  the 
demised  premises  to  a  lien  in  favor  of  the  landlord 
for  rent.  Such  a  statutory  lien  on  crops  is  not  ordinarily 
restricted  to  the  crops  of  the  tenant,  but  the  crops  of  a 
subtenant  are  subject  thereto,  while  a  lien  given  by 
statute  on  things  other  than  crops  is  usually  restricted 
to  things  belonging  to  the  tenant  himself.  The  statute 
ordinarily  names  the  method  of  enforcing  the  lien,  as, 
for  instance,  by  attachment,  or  by  statutory  distress. 
But  even  when  the  statute  named  another  method  of 
enforcing  the  lien,  a  right  to  foreclose  it  by  a  proceeding 
in  equity  has  not  infrequently  been  upheld.^^ 

Occasionally  a  lien  is  created  upon  crops  or  other 
personal  property  upon  the  leased  premises  by  ex- 
press stipulation  in  the  instrument  of  lease.  A  lien  so 
created  resembles,  more  or  less,  a  chattel  mortgage, 
and  the  courts  are  inclined  to  determine  the  rights  of 
the  lessor  thereunder  from  this  point  of  view.  It 
is  usually  enforced  by  the  decree  of  a  court  of  equity 
for  the  sale  of  the  property  subject  to  the  lien.^^ 

90.  St.  11  Geo.   2,  c.  19,   §  1.  92.     See   2    Tiffany,   Landlord    & 

91.  2   Tiffany,  Landlord    &   Ten-       Tenant,   §   321. 
aut,    §§    347-351.  93.     Id.,    §   322. 


CHAPTER  XVTI. 

PUBLIC  RIGHTS. 

§  417.  Highways. 

418.  Parks,  squares,  and  commons. 

419.  Customary  rights. 

420.  Rights  of  fishing. 

421.  Rights  of  navigation. 

§  417.  Highways.  We  have  before  referred  to 
rights  as  to  the  use  of  the  land  of  an  individual  for  a 
public  or  quasi  public  purpose,  such  as  a  right  of  way 
for  a  railroad,  for  a  drain,  or  for  irrigation  purposes.^ 
These,  however,  though  they  involve  a  public  use 
of  the  land,  do  not  usually  give  a  right  of  user  to  each 
member  of  the  public,  while  the  rights  which  we  will 
now  consider  may  ordinarily  be  exercised  by  any  indi- 
vidual member  of  the  })ublic,  or  of  that  part  of  the 
public  resident  in  a  particular  locality. 

The  most  usual  instance  of  a  right,  in  each  member 
of  the  public,  thus  to  make  use  of  another's  land,  exists 
in  the  case  of  a  ''highway"  over  private  land;  this 
being,  in  effect,  a  right  of  way  in  gross,  in  favor  of  each 
member  of  the  public. 

Though  the  existence  of  a  highway  does  not,  at 
common  law,  affect  the  ownership  of  the  soil,  which 
remains  in  the  original  owner,  subject  to  use  by  tiie 
public  for  highway  i)urposes,  under  some  state  statutes 
bearing  upon  the  creation  of  highways,  not  only  the 
right  of  user  but  the  ownership,  or  "fee,"  as  it  is  gener- 
ally termed,  of  the  land,  is  in  the  public,  or  in  the  state 
or  municipality  in  trust  for  the  public,  in  which  case 
the  rights  of  user  in  the  public  are  not  rights  as  to  the 

1.     See  ante,  §  365. 

(1523) 


.1524  Real  Peopekty.                           [§  417 

user   of   another's  land,  but   rather    rio'hts   incident   to 
ownership.^ 

Creation.  A  hi.a:hway  mav  be  created  either 


(1)  by  "dedication"  of  the  land  by  the  owner  to  use 
as  a  highway;  (2)  by  prescription, — that  is,  user  of 
the  land  by  the  public  for  highway  purposes  for  the 
prescriptive  period;  or  (3)  by  statutory  proceedings, 
involving,  if  necessary,  the  taking  of  the  land  upon  the 
payment  of  compensation  under  the  power  of  eminent 
domain. 

Statutory  proceedings  are  usually,  in  the  case  of 
suburban  highways,  instituted  by  owners  of  land  in- 
terested in  procuring  the  establishment  of  the  highway; 
and  in  cities,  by  the  municipal  authorities.  All  per- 
sons interested  in  the  land  over  or  through  which  the 
highway  is  to  run  are  made  parties  to  the  proceeding; 
and  it  is  the  ordinary  practice,  in  one  proceeding,  to 
determine  the  damages  to  be  paid  to  the  owaiers  of  the 
land  utilized  for  the  highway,  and  to  apportion  among 
the  owners  of  the  land  to  be  benefitted  thereby  the  cost 
of  the  undertaking.  The  preliminary  question  whether 
the  proposed  highway  is  necessary  for  the  public  wel- 
fare may  be  determined  by  the  legislature,  or  delegated 
to  the  local  authorities,  or  left  to  be  adjudicated  by  the 
tribunal  which  determines  the  question  of  damages. 

The  question  whether,  by  proceedings  of  this  char- 
acter, the  ownership  or  *'fee"  of  the  land  is  vested  in 
the  public,  or  merely  a  right  of  user,  is  to  be  determined 
by  the  terms  of  the  statute ;  and  unless  this  plainly  con- 
templates that  the  *'fee"  shall  be  appropriated,  it  is 
generally  held  that  the  public  acquires  a  right  of  user 
only.2 

2.     The   use  of  the   word   "fee"  tive   of   the   Guration   of  a   right, 

in    this    connection    to    designate  rather  than  of  its  character,  and 

the    ownership,    as    distinct    from  its    use    erroneously   implies    that 

the    mere    right    of    user,    of    the  a  mere  right  of  user  is  necessarily 

land,  though  sanctioned  by  almost  less   in   duration  than   a  fee. 
universal  practice,  is  unfortunate,  3.     1    Lewis,    Eminent   Domain, 

since  the  word  is  properly  descrip-  §    449;    Elliott,   Roads   &    Streets, 


§  -tl7] 


Public    Rights. 


1525 


The  dedication  of  land  to  the  i)ub]ic  for  nse  as  a 
highway,  and  the  creation  of  highways  by  prescription, 
will  be  considered  in  another  part  of  this  work.^ 

Rights   of  owner  of  land.     When   the   pul)lic 


have  a  right  of  passage  merely,  the  owner  of  the  land 
or  "fee"  therein  may  use  it  in  any  way  not  interfering 
with  its  use  by  the  public  for  passage.^  He  is,  in  the 
ordinary  case,  alone  entitled  to  cut  and  appropriate  the 
trees,^  or  herbage,''^  within  the  highway  limits,  and  to 
remove  the  soil  or  minerals  under  the  highway.^  The 
municipal  authorities  may,  however,  remove  trees, 
earth  or  stone  for  the  purpose  of  opening  or  improving 
the  highway,  and  by  some  decisions  they  may  utilize 
materials  so  obtained  for  the  purpose  of  repairing  other 
parts  of  the  highway.^ 

The  owner  of  the  land  may  bring  ejectment  against 
one    unlawfully    inclosing    or    encroaching    within    the 


§  254;   2  Dillon,  Municipal  Corpo- 
rations,  §   589. 

4.  See   jwst,    §§    479,   514. 

5.  Elliott,  Roads  &  Streets,  §§ 
259,  876;  15  Am.  &  Eng.  Enc.  Law 
(2nd  Ed.)  416;  Cloverdale  Homes 
V.  Town  of  Cloverdale.  182  Ala. 
419,  47  L.  R.  A.  (N.  S.)  607,  62 
So.  712:  Perley  v.  Chandler,  6 
Mass.  454.  4  Am.  Dec.  159;  Glen- 
coe  V.  Reed,  93  Minn.  518,  67  L. 
R.  A.  901,  101  N.  W.  956;  Daily 
V.  State,  51  Ohio  St.  348,  46  Am. 
St.  Rep.  578;  Lynch  v.  Town  of 
Northview,  73  W.  Va.  609,  52  L. 
R.  A.    (N.   S.)    1038,  81  S.   E.   83;i. 

6.  City  of  Atlanta  v.  Holliday. 
96  Ga.  546,  23  S.  E.  509;  Crisraon 
V.  Deck,  84  Iowa,  344,  51  N.  W.  55; 
Bigelow  V.  Whitcomb,  72  N.  H. 
473,  65  L.  R.  A.  676,  57  Atl.  680; 
Weller  v.  McCormick,  52  N.  J.  L. 
470,  8  L.  R.  A.  798,  19  Atl.  1101; 
Dailey  v.  State,  51   Ohio   St.  348. 


24  L.  R.  A.  724,  46  Am.  St.  Rep. 
578,  37  N.  E.  710;  Sanderson  v. 
Haverstick,  8  Pa.  St.  294;  Tucker 
V.    Eldred,    6   R.   I.    404. 

7.  Stackpole  v.  Healy,  16  Mass. 
33,  8  Am.  Dec.  121;  Cole  v.  Drew, 
44  Vt.  49,  8  Am.  Rep.  363;  People 
V.  Foss,  80  Mich.  559,  45  N.  W. 
480,  20  Am.  St.  Rep.  532;  Wood- 
ruff V.  Neal,  28  Conn.  165;  1  Lewis, 
Eminent  Domain,  S  853. 

8.  Town  of  Suffield  v.  Hatha- 
way, 44  Conn.  521,  26  Am.  Rep. 
4S3;  Aurora  v.  Fox,  78  Ind.  1; 
Deaton  v.  Polk  County,  9  Iowa, 
594;  West  Covington  v.  Freking, 
8  Bush  (Ky.)  121;  Glencoe  v. 
Reed,  93  Minn.  518,  67  L.  R.  A. 
901,  10  N.  W.  956;  Higgins  v. 
Reynolds,  31   N.  Y.   151. 

9.  See  Dillon,  Mun.  Corp..  § 
1149;  15  Am.  &  Eng.  Encyc.  Law 
(2nd  Ed.)  417,  418. 


1526 


Real.  Pkopeety, 


[§  417 


limits  of  the  Mghway,^'^  or  trespass  against  one  ^ho 
uses  the  land  for  a  purpose  not  within  the  scope  of  its 
use  as  a  highway/*^-^  or  who  injures  trees  or  herbage 
thereon.^  ^ 

A  city  street  is  a  highway,  but  a  distinction  is  fre- 
quently asserted  between  such  a  highway  and  an  ordi- 
nary rural  highway,  it  being  said  that,  while  in  the 
latter  case  the  public  have  merely  a  right  of  passage, 
in  the  case  of  a  city  street  there  exists,  besides  this 
right  of  passage  in  individual  members  of  the  public, 
power  in  the  municipal  authorities  to  change  the  surface, 
to  cut  down  trees,  place  sewers  and  pipes  beneath  the 
bed  of  the  street,  and  in  effect  to  exclude  the  owner 
of  the  land  from  any  use  thereof  other  than  that  of 
passage  common  to  all  individuals.^-  The  cases,  how- 
ever, which  assert  such  a  distinction  do  not  usually  de- 
cide  that   a  use   can  be   made   of  a   city  street  which 


10.  Goodtitle  v.  Alker,  1  Bur- 
row, 133;  Perry  v.  New  Orleans, 
M.  &  C.  R.  Co.,  55  Ala.  413,  28 
Am.  Rep.  740;  Postal  Telegraph 
Cable  Co.  v.  Eaton,  170  111.  513, 
39  L.  R.  A.  722,  62  Am.  St.  Rep. 
390,  49  N.  E.  365;  Louisvnie,  St. 
L.  &  T.  Ry.  Co.  V.  Liebfried.  92 
Ky.  407,  17  S.  W.  870;  Proprietors 
of  Locks  &  Canals  on  Merrimack 
River  v.  Nashua  &  L.  R.  Co.,  104 
Mass.  1;  Thomas  v.  Hunt,  134  Mo. 
392,  32  L.  R.  A.  857,  35  S.  W. 
581;  Jackson  v.  Hathaway,  15 
Johns.  (N.  Y.)  447,  8  Am.  Dec. 
263;  Becker  v.  Lebanon  &  M.  St. 
Ry.  Co.,  195  Pa.  502,  46  Atl.  1096; 
Contra,  Cincinnati  v.  White,  6  Pet. 
(U.  S.)  431,  8  L.  Ed.  452;  Becker 
V.  Lebanon  &  M.  St.  Ry.  Co.,  195 
Pa.  502,  46  Atl.  1096.  See  the 
suggestive  discussion  of  the  last 
cited  case  in  an  editorial  note  in 
14   Harv.    Law    Rev.    at   p.    291. 

10a.     Lade      v.      Shepherd,      2 


Strange  1004;  Burr  v.  Stevens,  90 
Me.  500,  38  AtL  547;  Thomas  v. 
Ford,  63  Md.  346,  52  Am.  Rep. 
513;  Lewis  v.  Jones,  1  Pa.  St.  336, 
44  Am.  Dec.  138. 

11.  Barclay  v.  Howell's  Lessee, 
6  Pet.  (U.  S.)  498,  8  L.  Ed.  477; 
Woodruff  v.  Neal,  28  Conn.  165; 
Blis  V.  Hall,  99  Mass.  597;  Bolen- 
der  V.  Southern  Michigan  Tel.  Co., 
182  Mich.  646,  148  N.  W.  697; 
Gambel  v  Pettijohn.  116  Mo.  375, 
22  S.  W.  783;  Andrews  v.  You- 
mans,  78  Wis.  56.  47  N.  W.  304. 

12.  See  Western  Railway  of 
Alabama  v.  Alabama  Grand  Trunk 
R.  Co.,  96  Ala.  272,  17  L.  R.  A. 
474,  11  So.  483;  Montgomery  v. 
Santa  Ana  Westminster  Ry.  Co. 
104  Cal.  186,  25  L.  R.  A.  654,  43 
Am.  St.  Rep.  89,  37  Pac.  786; 
Kincaid  v.  Indianapolis,  etc..  Gas 
Co.,  124  Ind.  577,  8  L.  R.  A.  602. 
19  Am.  St.  Rep.  113,  24  N.  E. 
1066;   Chesapeake  &  Pot.  Telephone 


§  417]  Public   Rights.  1527 

cannot  be  made  of  a  suburban  highway  ;^^  and  the 
sounder  view  seems  to  be  that  a  suburban  highway, 
like  a  city  street,  is  subject  to  all  highway  uses  and  im- 
provements which  may  be  necessary,  among  which  are 
to  be  included  its  use  for  the  supply  of  water,  light,  or 
drainage,  when  these  are  rendered  necessary  by  the 
density  of  population,  and  that  the  fact  that  the  high- 
way is  within  the  limits  of  a  city  is  immaterial,  except 
as  this  is  usually  coincident  with  the  necessity  for  such 
uso.^^ 

Additional  servitude.    When  the  ownership  of 


the  land  is  not  acquired  by  the  public,  but  merely  a 
right  of  passage,  if  the  land  within  the  highway  limits 
is  afterwards  used  for  a  purpose,  even  though  of  a 
public  nature,  which  is  not  within  the  scope  of  the  high- 
way use  for  which  the  land  was  dedicated  or  appropri- 
ated, it  is  considered  that  the  land  is  subjected  to  an 
additional  burden  or  *' servitude,"  entitling  the  owner 
to  compensation  as  for  a  new  taking  of  x>roperty.  So  it 
has  been  held  that  the  use  of  the  highway  for  a  steam 

Co.    V.    Mackenzie,    74    Md.    36,    28  14.     See    Floyd    County    v.    Rome 

Am.  St.  Rep.  219,  21  Atl.  690;  Van  St.  R.  Co.,    77  Ga.    614,  3  S.  E.  3; 

Brunt  V.   Town   of   Flatbush,    128  De  Kalb  Co.  Telephone  Co.  v.   Dut- 

N.  Y.  50,  27  N.  E.  973;   McDevitt  to^n,   228   111.   178,   10   L.   R.  A.    (N. 

V.  Peoples'  Nat.  Gas  Co.,  160  Pa.  S.)     1057,    81     N.    E.     838;    Lake 

St.    367,    28    Atl.    948;     Duquesne  Shore       M.   S.  R.   Co.    v.    Whiting, 

Light    Co.    V.    Duff,    251    Pa.    607,  161   Ind.   76,    67   N.    E.   933;    Cater 

97     Atl.     82;     Elliott,     Roads     &  v.  Northwestern  Tel.    Exch.  Co.,    60 

Streets,  §   482  et  seq.  Minn.  539,  28  L.  R.  A.  310,  51  Am. 

13,     "The  only   court   in  which  it  St.   Rep.   543,  63   N.   W.   Ill;   Eels 

has  been  unequivocally    adjudicated  v.     American      Telephone     &     Tele- 

that  a   certain   use    was   legitimate  graph  Co.,  143  N.  Y.  133,  25  L.  R. 

in  the  case  of  city  streets,  anQ  not  A.    640,   38   N.   E.   202;     Palmer    v. 

legitimate   in    the   case    of   country  Larchmont  Electric  Co.,   158   N.    Y. 

highways,    is    that  of  Pennsylvania,  231,    43     L.   R.     A.    672,    52    N.    E. 

in   which    it  has  been  held  that  an  1092;    Callen   v.   Columbus  Edison 

electric  passenger  railway  is  a  legi-  Elec.  Light  Co.  66  Ohio   St.  16(i,  OS 

timate    use     of    a     city    or    village  L.  R.  A.   782,  64   N.  E.    141;   Hu<l- 

street,  but  not   of  a  country  road."  dleston    v.  Eugene,  34    Ore.  343,    43 

1   Lewis,   Eminent    Domain,    §    118.  L.  R.  A.  444,  55  Pac.  868;  1  Lewis, 

Eminent    Domain,    §    118, 


1528 


Keal  Propeety. 


[§  417 


railway,  carrying  freight  as  well  as  passengers,  is  not 
an  ordinary  highway  use,  and  that  the  owner  of  the  fee 
is  consequently  entitled  to  compensation  therefor.^^ 
In  New  York  a  like  view  is  taken  as  to  a  street  rail- 
way,^*^  but  the  great  weight  of  authority  is  to  the  effect 
that  a  passenger  street  railway  operated  on  the  surface 
of  the  ground  is  not  an  additional  servitude.^'     In  some 


15.  Western  Kailway  of  Ala- 
bama V.  Alabama  Grand  Trunk  E. 
Co.,  96  Ala.  272,  17  L.  K.  A.  474, 
11  So.  483;  Denver  &  Rio  Grande 
R.  Co.  V.  Stinemeyer,  5&  Colo.  396, 
148  Pac.  860;  Imlay  v.  Union 
Branch  R.  Co.,  26  Conn.  249;  Flor- 
ida Southern  Ry.  Co.  v.  Brown,  23 
Fla.  104,  1  So.  512;  Harrold  Bros. 
V.  Americus,  142  Ga.  686,  83  S.  E. 
5.34;  Indianapolis,  B.  &  W.  R.  Co. 
V.  Hartley,  67  111.  439;  Mitchell  v. 
Chicago  B.  &  Q.  Ry.  Co.,  265  III. 
300,  106  N.  E.  833;  Cox  v.  Louis- 
ville, N.  A.  &  C.  R.  Co.,  48  Ind. 
178;  Kucheman  v.  Chicago  C.  &  D. 
R.  Co.,  46  Iowa,  366;  Phipps  v. 
Western  M.  R.  Co.,  66  Md.  319,  7 
Atl.  556;  Grand  Rapids  &  I.  R. 
Co.  V.  Heisel,  38  Mich.  62;  Wil- 
liams V.  New  York  Cent.  R.  Co., 
16  N.  Y.  97;  White  v.  North- 
western North  Carolina  R.  Co.,  113 
N.  C.  610,  22  L.  R,  A.  627,  37  Am. 
St.  Rep.  638,  18  S.  E.  330;  Illinois 
Cent.  R.  Co.  v.  Hudson,  136  Tenn. 
1,  188  S.  W.  589;  589  ("dummy" 
line).  Contra,  Montgomery  v. 
Santa  Ana  Westminster  Ry.  Co., 
104  Cal.  186,  25  L.  R.  A.  654,  43 
Am.  St.  Rep.  89,  37  Pac.  786; 
Moore  Mfg.  Co.  v.  Springfield 
Southwestern  Ry.  Co..,  256  Mo.  167, 
165  S.  W.  305.' 

The  erection  of  poles  and  trolley 
wires  to  furnish  electricity  for  the 
running    of    cars    on    streets    other 


than  that  on  which  the  erections 
are  made  was  held  not  to  create 
a  new  servitude.  Brandt  v.  Spok- 
ane &  I.  E.  R.  Co.,  78  Wash.  214, 
52  L.  R.  A.  (N.  S.)  760,  138 
Pac.    871. 

16.  Craig  v.  Rochester  City  &  B. 
R.  Co.,  39  N.  Y,  404;  Peck  v. 
Schenectady  Ry.  Co.,  170  N.  Y. 
298,  63  N.  E.  357;  Paige  v. 
Schenectady,  178  N.  Y.  102,  70  N. 
E.  213.  See,  for  a  discussion  of 
this  matter,  1  Lewis,  Eminent  Do- 
main, §§  158-164;  editorial  note, 
8   Columbia   Law    Rev.   575. 

17.  Birmingham  Traction  Co.  v. 
Birmingham  Ry.  &  Electric  Co.,  110 
Ala.  137,  43  L.  R.  A.  233,  24  So. 
502;  Finch  v.  Riverside  &  A.  Ry. 
Co.,  87  Cal.  597,  25  Pac.  765;  El- 
liott V.  Fair  Haven  &  W.  R.  Co., 
32  Conn.  579;  Randall  v.  Jackson- 
ville St.  R.  Co.,  19  Fla.  409;  Floyd 
County  V.  Rome  St.  R.  Co.,  77  Ga. 
614,  3  S.  E.  3;  Chicago,  B.  &  Q. 
R.  Co.  V.  West  Chicago  Street  R. 
Co.,  156  111.  255,  29  L.  R.  A.  485, 
40  N.  E.  1008;  Indiana  Union 
Traction  Co.  v.  Gough,  54  Ind. 
App.  438,  102  N.  E.  453;  Hodges 
V.  Baltimore  Union  Passenger  Ry. 
Co.,  58  Md.  603;  Attorney  Gen- 
eral V.  Metropolitan  E.  Co.,  125 
Mass.  515;  Newell  v.  Minneapolis, 
L.  &  M.  Ry.  Co.,  35  Minn.  112, 
59  Am.  Rep.  303,  27  N,  W.  839; 
Williams   v.   Meridian   Light   &   Ry. 


§  417] 


Public    Rights. 


1529 


states  a  telegraph  or  telephone  line  is  regarded  as  an 
additional  burden  on  the  fee/^  and  in  others  a  contrary 
view  is  taken.  ^^  The  use  of  a  street  or  highway  for 
sewers,^*^  gas  pipes,^^  or  water  pipes,--  is  a  legitimate 


Co.,  110  Miss.  174,  69  So.  596; 
Hincbman  v.  Paterson  Horse  K. 
Co.,  17  N.  J.  Eq.  75;  Texas  &  P. 
Ry.  Co.  V.  Eosedale  St.  R.  Co..,  64 
Tex.   80. 

A  like  view  has  beeu  taken  even 
when  the  street  railway  was  used 
in  part  for  transporting  freight. 
Percy  v.  Lewiston,  A.  &  W.  St. 
Ry.,   113   Me.   106,   93   Atl.   43. 

A  subway  utilized  for  travel  has 
likewise  been  regarded  as  not  con- 
stituting an  additional  servitude. 
Sears  v.  Crocker,  184  Mas?.  586, 
100  Am.  St.  Rep.  577,  69  N.  E. 
327;  Peabody  v.  Boston,  220  Mass. 
376,   107    N.   E.    952. 

18.  Pacific  Postal  Telegraph  & 
Cable  Co.  v.  Irvine,  49  Fed.  113; 
De  Kalb  County  Telephone  Co.  v. 
Dutton,  228  111.  178,  10  L.  R.  A. 
(N.  S.)  1057,  81  N.  E.  838; 
Chesapeake  &  P.  Tel.  Co.,  of  Balti- 
more V.  Mackenzie,  74  Md.  36,  28 
Am.  St.  Rep.  219,  21  Atl.  690; 
Stowers  v.  Postal  Telegraph-Cable 
Co.,  68  Miss.  559,  12  L.  R.  A.  864, 
24  Am.  St.  Rep.  290,  9  So.  ,'556; 
Eronson  v.  Albion  Telephone  Co., 
67  Neb.  1111,  60  L.  E.  A.  426, 
93  N.  W.  201;  Eels  v.  American 
Telephone  &  Telegraph  Co.,  143  N. 
Y.  133,  25  L.  R.  A.  640,  38  N. 
E,  202;  Western  Union  Telegraph 
Co.  V.  Williams,  86  Va.  696,  8  L. 
R.  A.  429,  19  Am.  84:.  Rep.  908, 
11  S.  E.  106;  Krueger  v.  Wiscon- 
sin Tel.  Co.  lOG  Wis.  96,  50  L.  R. 
A.    298,  81   N.    W.   1041. 

19.  Hobbs  v.  T^ong  Distance 
Tel.  &  Tel.  Co.,  147  Ala.  393,  7  L. 


R.  A.  (N.  S.)  87,  41  So.  1003;  Ma- 
gee  V.  Overshlner,  150  Ind.  127, 
40  L.  R.  A.  370,  65  Am.  St.  Rep. 
358,  49  N.  E.  951;  Pierce  v.  Drew, 
136  Mass.  75,  49  Am.  Rep.  7;  Peo- 
ple V.  Eaton,  100  Mich.  208,  24  L. 
R.  A.  721,  59  N.  W.  145;  Julia 
Building  Ass'u.  v.  Bell  Telephone 
Co.,  88  Mo.  258,  57  Am.  Rep.  398; 
Cater  v.  Northwestern  Telephone 
Exchange  Co.,  60  Minn.  539,  28  L. 
R.  A.  310,  51  Am.  St.  Rep.  543,  63 
N.  W.  Ill;  Hershfield  v.  Rocky 
Mountain  Bell  Telephone  Co.,  12 
Mont.  102,  29  Pac.  883;  Carpenter 
V.  Lancaster,  250  Pa.  541,  95  Atl. 
702. 

20.  Cone  v.  City  of  Hartford, 
28  Conn.  363;  City  of  Boston  v. 
Richardson,  13  Allen  (Mass.)  146; 
Stondinger  v.  City  of  Newark,  28 
N.  J.  Eq.  187,  affirmed,  28  N.  J. 
Eq.  446;  In  re  City  of  Yonkers, 
117  N.  Y.  564,  23  N.  E.  661;  El- 
ster  V.  Springfield,  49  Ohio  St.  82, 
30  N.  E.  274;  Carpenter  v.  Lancas- 
ter, 250  Pa.  541,  95  Atl.  702;  1 
Lewis  Eminent  Domain,   §   183. 

21.  Dillon,  Mun.  Corp.,  8  1213; 
McDevitt  V.  Peoples  Nat.  Gas  Co., 
160  Pa.  367,  28  Atl.  948;  Cheney  v. 
Barker,  198  Mass.  356,  16  L.  R.  A. 
(N.  S.)   436,  84  N.  E.  492. 

22.  Provost  V.  New  Chester 
Water  Co.,  162  Pa.  St.  275,  29  Atl. 
914;  Wood  v.  National  Water 
Works  Co.,  :'.3  Kan.  590,  7  Pac. 
233;  City  of  Quincy  v.  Bull,  106 
111.  337;  Bishop  v.  North  Adams 
Fire  District,  1C7  Mass.  364,  45  N. 
E.  925. 


1530 


Real  Pkoperty. 


[§  417 


use,  for  which  the  owner  'of  the  fee  cannot  recover 
compensation,  unless  it  is  not  for  the  benefit  of  the  com- 
munity itself,  or  the  members  thereof,  but  is  for  the 
benefit  of  another  municipality,  or  of  individuals  alone.-"' 
The  maintenance  of  a  market  on  a  highway  constitutes 
an  additional  servitude,-*  as  does  the  erection  of  a 
stand  pipe  to  supply  water  to  the  community;-^  but  a 
well  or  underground  cistern  has  been  regarded  as 
maintainable  in  a  street  for  the  purpose  of  furnishing 
water  for  street  sprinkling  purposes,  this  being  a  street 
use.2*^ 

Some  of  the  later  cases  are  to  the  effect  that  the 
ownership  of  the  "fee"  does  not  involve  rights  of  such 
practical  value  as  to  authorize  compensation  in  case 
of  an  additional  use  of  the  surface  of  the  land,^"  and 


23.  Kincaid  v.  Indianapolis 
Natural  Gas  Co.,  124  Ind.  577,  8 
L.  R.  A.  602,  19  Am.  St.  Rep.  113, 
24  N.  E.  1066;  Ward  v.  Triple 
State  Nat.  Gas  Oil  Co.,  115  Ky. 
723,  74  S.  W.  709;  Baltimore 
County  Water  &  Elec.  Co.  v.  Du- 
breuil,  105  Md.  424,  66  Atl.  439; 
Bloomfield  &  R.  Natural  Gas  Light 
Co.  V.  Calkins,  62  N.  Y.  386;  Van 
Brunt  V.  Town  of  Flatbush,  128 
N.  Y.  50,  27  N.  E.  973;  Sterling's 
Appeal,  111  Pa.  St.  35,  56  Am. 
Rep.  246,  2  Atl.  105;  Contra,  Che- 
ney V.  Barker,  198  Mass.  356,  16 
L.  R.  A.  (N.  S.)   436,  84  N.  E.  492. 

24.  Lutterloh  v.  Town  of  Ce- 
dar Keys,  15  Fla,  306;  Schopp  v. 
City  of  St.  Louis.  117  Mo.  131,  20 
L.  R.  A.  783,  22  S.  W.  898;  State 
V.  Laverack.  34  N.  J.  L.  201. 

25.  Barrows  v.  City  of  Syca- 
more, 150  111.  588,  25  L.  R.  A. 
535,  41  Am.  St.  Rep.  400,  37  N.  E. 
1096.  And  so  as  to  a  water  tank 
above    the    surface,    Morrison    v. 


Hinkson,  87  111.  587,  Davis  v.  Ap- 
lepton,  109  Wis.  580,  85  N.  W. 
515. 

26.  West  V.  Bancroft,  32  Vt. 
367.  Contra,  Dubuque  v.  Mahon- 
ey,  9  Iowa  450,  criticized  Dillon, 
Mun.  Corp.   §   1156. 

27.  Barney  v.  Keokuk,  94  U.  S. 
324,  24  L.  Ed.  224;  Theobald  v. 
Louisville,  N.  O.  &  T.  Ry.  Co.,  66 
Miss.  279,  4  L.  R.  A.  735,  14  Am. 
St  Rep.  564,  6  So.  230;  Donahue 
V.  Keystone  Gas  Co.,  181  N.  Y. 
313,  70  L.  R.  A.  761,  106  Am.  St. 
Rep.  549,  73  N.  E.  1108;  White 
V.  Northwestern  North  Carolina 
R.  Co.,  113  N.  C.  610,  22  L.  R.  A. 
627,  37  Am.  St.  Rep.  639,  18  S.  E. 
630;Blackwell,  E.  &  S.  W.  R.  Co. 
V.  Gist,  18  Okla.  516,  90  Pac.  889; 
McQuaid  v.  Portland  &  V.  Ry.  Co. 
18  Ore.  237,  22  Pac.  899;  Gulf,  C. 
&  S.  F.  R.  Co.  V.  Eddins.  60  Tex. 
656:  Dooley  Block  v.  Salt  Lake 
Rapid  Transit  Co.,  9  Utah  31,  33 
Pac.  229. 


§  417]  Public   Rights.  1531 

the  text  l)ooks  usually  uphold  this  view,-*  which  has 
gained  strength  with  the  development  of  the  modern 
doctrine,  referred  to  in  the  next  paragraph,  that  the 
abutting  owner  is,  as  such,  entitled  to  compensation  for 
interference  with  his  rights  of  light,  air,  and  access 
caused  by  the  additional  use  of  the  highway,— a  doctrine 
which  renders  it  unnecessary  to  base  his  right  to 
compensation  on  his  possible  ownership  of  the  fee. 

Rights  of  abutting  owners.    The  owner  of  land 


abutting  on  a  highway  has  sometimes  been  regarded  as 
having  no  right  to  compensation  by  reason  of  a  new 
use  of  the  highway,  unless  he  can,  as  above  indicated, 
recover  compensation  as  owner  of  the  _ ' '  fee ' '  in  the 
highway,  the  result  being  to  exclude  any  recovery  by 
him  if  the  fee  is  in  the  public.-^  The  view  is,  however, 
quite  usually  taken,  at  the  present  day,  that  an  abutting 
owner,  as  such,  has  rights  of  access  to  his  premises  by 
means  of  the  highway,  and  also  rights  to  enjoy  light  and 
air  from  the  open  space  above  the  highway,  which  can- 
not be  destroyed  or  impaired,  to  his  detriment,  except 
in  the  use  and  improvement  of  the  highway  for  high- 
way purposes,  without  making  comi)ensation  to  him."'" 

28.  1  Lewis,  Eminent  Domain,  556,  41  Am.  St.  Rep.  311,  37  N.  E. 
S  128;  Randolph,  Eminent  Do-  850,  24  L.  R.  A.  406;  Barrows  v. 
main,  §  415;  Dillon,  Mun.  Corp.  City  of  Sycamore,  150  111.  588.  25 
S§  1136,  1279.  L.  R.  A.  535,  41  Am.  St.  Rep.  400, 

29.  Florida  Southern  Ry.  Co.  37  N.  E.  1096;  Decker  v.  Evans- 
V.  Brown,  23  Fla.  104,  1  So.  512:  ville.  S.  &  N.  Ry.  Co.,  133  Ind. 
Moses  V.  Pittsburgh,  Ft.  W.  &  C  493,  33  N.  E.  349;  Chesapeake  & 
R.  Co.,  21  111.  516;  Davis  v.  C.  &  P.  Tel.  Co.  of  Baltimore  v.  Mack- 
N.  W.  Ry.  Co.,  46  Iowa  389;  At-  enzie,  74  Md.  36,  28  Am.  St.  Rep. 
chison  &  N.  R.  Co.  v.  Garside,  10  219,  21  Atl.  690;  Spencer  v.  Met- 
Kan.  552;Fobes  v.  Rome,  W.  &  O.  ropolitan  St.  Ry.  Co.,  120  Mo.  154. 
R.  Co.,  121  N.  Y.  505,  8  L.  R.  A.  22  L.  R.  A.  668,  23  S.  W.  126; 
453,  24  N.  E.  919;  East  End  St.  Barnett  v.  Johnson,  15  N.  J.  Eq. 
R.  Co.  V.  Doyle,  88  Tenn.  747.  9  481;  White  v.  Northwestern 
L.  R.  A.  100,  13  S.  W.  936.  See  North  Carolina  R.  Co.,  113  N.  C. 
Lewis,  Eminent  Domain,  §  156,  610,  22  L.  R.  A.  627,  37  Am.  St. 
note  31.  Rep.   639,  18   S.   E.  330;    McQuaid 

30.  Field    v.    Barling.    149    111.  v.  Portland  &  V.  Ry.  Co.,  18  Ore. 


1532 


Real  Peopeety. 


[M17 


These  rights  are  frequently  spoken  of  as  "easements" 
in  the  highway,  or  in  the  land  used  for  the  highway, 
and  they  are  in  some  respects  analogous  to  easements. ^^ 
It  is  on  the  theory  that  such  rights  are  impaired 
that  an  abutting  owner  has  been  held  to  be  entitled  to 
compensation  on  account  of  the  construction  and  main- 
tenance of  an  elevated  railway  in  the  street  f"^  and  since 
the  maintenance  of  a  steam  railroad  in  the  highway,  for 
the  purpose  of  transporting  freight  as  well  as  passen- 
gers from  town  to  town,  is  usually  regarded  as  a  use  of 
the  highway  for  other  than  highway  purposes,  the 
abutting  owners  are,  it  seems,  entitled  to  compensation 
for  the  resulting  interference  with  their  rights  of  light, 
air,  and  access,  irresi^ective  of  the  ownership  of  the  land 
within  the  highway  limits.''''  A  passenger  street  rail- 
way, operated  on  the  surface  of  the  highways,  whether 
it  be  a  horse,  electric,  or  cable  railway,  is  regarded  as 


237,  22  Pac.  899;  Johnston  v.  Old 
Colony  R.  Co.,  18  R.  I.  642,  49  Am. 
St.  Rep.  800,  29  Atl.  594;  Frater 
V.  Hamilton  County,  90  Tenn. 
661,  19  S.  W.  233;  Davis  v. 
Spragg,  72  W.  Va.  672,  48  L.  R.  A. 
(N.  S.)  173,  79  S.  E.  652;  1  Lewis, 
Eminent  Domain,  §§  120-123; 
Dillon,  Mun.  Corp.  §  1245. 

31.  See,  as  to  the  character  of 
such  rights,  15  Harv.  Law  Eev. 
at  p.  305.  And  as  to  the  theory 
on  which  they  may  be  regarded 
as  arising,  see  1  Lewis,  Eminent 
Domain    (3rd  Ed.),  §    121    et    seq. 

32.  Story  v.  New  York  Ele- 
vated R.  Co.,  90  N.  y.  122;  Lahr 
V.  Metropolitan  Elevated  Ry.  Co., 
104  N.  Y.  268,  10  N.  E.  528; 
Bischoff  v.  New  York  El.  E.  Co., 
138  N.  Y.  257,  33  N.  E.  1073. 
See  Aldis  v.  Union  Elevated  R. 
Co.,  203  111.  567,  68  N.  E.  95; 
Rourke  v.  Holmes  St.  Ey.  Co.,  — 
(Mo.  App.)  — ,  117  S.  W.    1102. 


33.  Denver  &  S.  F.  R.  Co.  v. 
Hannegan,  43  Colo.  122,  16  L.  R. 
A.  (N.  S.)  874,  127  Am.  St.  Rep. 
100,   95   Pac.     343;    South    Carolina 

E.  Co.  v.  Steiner,  44  Ga.  546,  560; 
Illinois  Cent.  R.  Co.  v.  Elliott,  129 
Ky.  121,  110  S.  W.  817;  Hoff- 
man V.  Flint  &  P.  M.  R.  Co.,  114 
Mich.  316,  72  N.  W.  167;  Gustaf- 
son  V.  Hamm,  56  Minn.  334,  22 
L.  E.  A.  565,  57  N.  W.  1054; 
Theobold  v.  Louisville,  N.  O.  &  T. 
Ey.  Co.,  66  Miss.  279,  4  L.  R.  A. 
735,  14  Am.  St.  Rep.  564,  6  So. 
230;  Chicago,  R.  I.  &  P.  Ry.  Co. 
V.  Sturey,  55  Neb.  137,  75  N.  W. 
557;  White  v.  Northwestern  North 
Carolina  E.  Co.,  113  N.  C.  610,  22 
L.  R.  A.  627,  37  Am.  St.  Rep.  639, 
18  S.  E.  330;  Caveness  v.  Char- 
lotte, R.  &  S.  R.  Co.,  172  N.  C. 
305,    90   S.   E.     244;    Gulf   C.   &   S. 

F.  R.  Co.  v.  Eddins,  60  Tex.  656. 
See  Decker  v.  Evansville,  S.  &  N. 
Ey.    Co.,    133    Ind.    493,     33    N.    E. 


§  -H7] 


Public    Eights. 


153^ 


a  use  of  the  high  way  for  highwaj^  purposes,  and  as 
consequently  not  ground  for  the  recovery  of  damages 
by  the  abutting  owner. ^^ 

Ordinarily,  it  seems,  the  construction  of  a  tunnel  or 
subway  involves  no  interference  with  any  of  these  ease- 
ments, and  the  abutting  owner  has,  as  such,  no  right  to 
assert  a  claim  for  damages  on  account  thereof,^^^  but 
the  mode  of  construction  may  occasionally  be  such  as 
to  involve  interference.^^'' 

The  authorities  are  generally  to  the  effect  that  an 
owner  of  land  abutting  on  a  street  is  not  entitled  to 
compensation  for  impairment  of  the  value  of  his  land 
by  a  change  of  the  grade  of  the  street,  provided  there 


:;49;  Kansas,  N.  &  D.  Ey.  Co.  v. 
Cuykendall,  42  Kan.  234,  16  Am. 
St.  Eep.  21  Pac.  1051;  Dillon, 
Mun.  Corp.,  §§  1250-1257.  But  see 
Ivloutgomeiy  \'.  Santa  Ana  West- 
minster Ey.  Co.,  104  Cal.  186,  25 
L.  E.  A.  654,  43  Am.  St.  Eep.  89, 
37  Pac.  786;  Olney,  City  of  v. 
Wharf,  115  111.  519,  56  Am.  Rep. 
178,  5  N.  E.  366;  O'Connor  v.  St. 
Louis,  K.  C.  &  N.  E.  Co.,  56  Iowa, 
735,  10  N.  W.  263;  Henry  Gans 
&  -Sons  Mfg.  Co.  V.  St.  Louis,  K. 
&  N.  W.  Ey.  Co.,  113  Mc.  308,  18 
L.  E.  A.  339,  35  Am.  St.  Eep. 
706,  20  S.  W.  658;  Sherlock  v. 
Kansas  City  B.  Ey.  Co.,  142  Mo. 
172,  64  Am.  St.  Eep.  551,  43  S. 
W.  629;  Reining  v.  New  York,  L. 
&  W.  E.  Co.,  128  N.    Y.    157. 

34.  1  Ijewis,  Eminent  Domain, 
§§  158-164;  Randolph,  Eminent 
Domain,  §§  402,  403;  Chicago,  B. 
&  Q.  E.  Co.  V.  West  Chicago  St. 
E.  Co.,  156  111.  255,  29  L.  E.  A. 
4S5,  40  N.  E.  1008;  Louisville  Ey. 
Co.  V.  Foster,  108  Ky.  743,  50  L. 
E.  A.  813,  57  S.  W.  480;  Briggs 
V.  Lewiston  &  H.  E.  Co.,  79  Mo. 
363,  1  Am.  St.  Eep.  316,  10  Atl. 
2  R.  P.— 22 


47;  Attorney  General  v.  Metro- 
politan E.  Co.,  125  Mass.  515;  Aus- 
tin V.  Detroit,  Y.  &  A.  A.  Ey.  Co., 
134  Mich.  149,  2  Ann.  Cas.  530, 
96  N.  W.  35;  Placke  v.  Union 
Depot  Ey.  Co.,  140  Mo.  634,  41  S. 
W.  915;  Kirkpatrick  v.  Piedmont 
Tiaction  Co.,  170  N.  C.  477,  87  S. 
E.  232;  Eaffeity  v.  Central  Trac- 
tion Co.,  147  Pa.  579,  30  Am.  St. 
Rep.  763,23  Atl.  884;  San  Antonio 
Rapid  Transit  St.  Ry.  Co.  v.  Lim- 
Inirger,  88  Tejf.  79,  53  Am.  St. 
Rep.  730,  30  S.  W.  533.  Contra. 
Slaughter  v.  Meridian  Light  «S:  E. 
Co.,  95  Miss.  251,  25  L.  E.  A.  (N. 
S.)  1265,  48  So'.  6;  Jaynes  v.  Oma- 
ha St.  Ey.  Co.,  53  Neb.  631,  39 
L.  R.  A.  751,  74  N.  W.  67,  by 
reason   of  trolley  poles). 

34a.  Lincoln  Safe  Deposit  Co., 
210  N.  Y.  34,  103  N.  E.  768.  See 
Sears  v.  Crocker,  184  Mass.  586, 
100  Am.  St.  Eep.  577,  69  N.  E. 
327. 

34b.  Colorado  Springs  v.  .Stark, 
57  Colo.  384,  140  Pac.  794;  Barn- 
ard V.  Chicago,  270  111.  27,  110  N. 
E    412. 


1534 


Real  Pbopekty. 


[§  417 


is  no  actual  eucroacliment  upon  the  land;  and  the  fact 
that  the  easements  of  light,  air,  or  access  are  thereby- 
affected  is  immaterial."^ -^ 

Besides  the  abutting  owner's  easements  of  light,  air 
and  access,  there  are  occasional  decisions  or  dicta  to 
the  effect  that  he  has  a  right  of  unobstructed  view  from 
and  over  every  part  of  the  highway  to  and  from  his 
property,''*'  and  a  number  of  courts  have  recognized 
rights  in  him  to  the  comfort  and  satisfaction  obtain- 
able from  the  presence  of  trees  in  the  highway,  with  a 
resulting  right  of  action  against  persons  injuring  or 
destroying  the  trees,  he  being  sometimes  referred 
to  as  having  an  easement  in  the  trees.^*""  In  one  state 
it  has  been  broadly  asserted  that  the  abutting  owner  has 
a  property  right  in  all  the  advantages  and  benefits  which 


35.  Smith  v.  Corpcration  of 
Washington,  20  How.  (U.  S.)  135, 
15  L.  Ed.  858;  Bowden  v.  Jackson- 
ville, 52  Fla.  216,  42  So.  394; 
Eoberts  v.  City  of  Chicago,  26  111. 
249;  Reilly  v.  Fort  Dodge,  118 
Iowa,  633,  92  N.  W.  887;  Cal- 
lender  v.  Marsh,  1  Pick.  (Mass.) 
417,  430;  City  of  Pontiac  v.  Carter, 
32  Mich.  164;  RadclifE's  Ex'rs  v. 
City  of  Brooklyn,  4  N.  Y.  195; 
Brand  v.  Multnomah  County,  38 
Ore.  791,  50  L.  R.  A.  389,  62  Pac. 
209,  84  Am.  St.  Rep.  772,  60  Pac. 
390;  O'Connor  v.  Pittsburgh,  18 
Pa.  St.  187;  Kehrer  v.  Rich- 
mond City,  81  Va.  745;  Walsh  v. 
Campbellsport,  123  Wis.  334,  101 
N.  W.  709;  1  Lewis,  Eminent  Do- 
main, §§  127-140;  3  Dillon,  Mun. 
Corp.,    §    1152. 

In  Ohio  the  abutting  owner  may 
recover  compensation  for  damage 
to  improved  property  from  an  un- 
reasonable change  of  grade.  City 
of  Akron  v.  Chamberlain  Co.,  34 
Ohio    St.   328;    Cincinnati  v.   Whet- 


stone,   47   Ohio  St.   196. 

36.  First  Nat.  Bank  v.  Tyson, 
133  Ala.  459,  59  L.  R.  A.  399,  91 
Am.  St.  Rep.  46,  32  So.  144;  Wil- 
liams V.  Los  Angeles  Ry.  Co.,  150 
Cal.  592,  89  Pac.  330;  Perry  v. 
Castner,  124  Iowa,  386,  100  N.  W. 
S4 ;  McCormick  v.  Weaver,  144 
Mich.  6,  107  N.  W.  314;  Jaynes 
v.  Omaha  St.  R.  Co.,  53  Neb.  631, 
39  L.  R.  A.  751,  74  N.  W.  67; 
Hallock  V.  Scheyer,  33  Hun  (X. 
Y.)  Ill;  Cobb  v.  Saxby  [1914]  3 
K.  B.  822.  See  Green  v.  Thresher, 
255  Pa.  169,  83  Atl.  711,  and  edi- 
torial «ote,  28  Harv.  Law  Rev. 
499,  from  which  some  of  the  above 
references   have  been  taken. 

36a.  Newland  v.  Iowa  Ry.  & 
Light  Co.,  179  Iowa,  228.  159  N. 
W.  244;  Donahue  v.  Keystone  Gas 
Co.,  181  N.  Y.  313,  70  L.  R.  A. 
761,  106  Am.  St.  Rep.  549,  73  N. 
E.  1108:  Wheeler  v.  Norfolk-  Caro- 
lina Telephone  &  Telegraph  Co., 
172  N.  C.  9,  89  S.  E.  793;  Nor- 
man Milling  &  Grain  Co.  v.  Beth- 


§  417]  Public   Eights.  1535 

accrue   to   him  by  reason  of   the  location  of  liis   land 
upon  the  street.^''' 

Rights  of  deviation.     There  are  a  number  of 


decisions  and  dicta  to  the  effect  that,  if  a  highway  be- 
comes impassable  at  a  certain  point,  a  traveler  may 
deviate  on  the  adjoining  land.^^  The  existence  of  such 
a  right  at  common  law  has  been  generally  assumed; 
but  whether  it  would  be  recognized  at  the  present  day  in 
England,  in  the  absence  of  a  prescriptive  right  to 
deviate,  is  doubtful."*'  Even  where  the  right  is  recog- 
nized, it  is  restricted  to  cases  of  strict  necessity,^"  and 
the  deviation  upon  neighboring  land  must  be  to  the 
smallest  possible  extent.*^ 

Extinction  of  highway.    The  common-law  max- 


im, ''Once  a  highway,  always  a  highway,"^-  may  be 
regarded  as  entirely  obsolete  in  this  country,  and  here 
a  highway  may  cease  to  exist  through  one  of  several 
causes. 

There  are  in  many  states  statutory  provisions 
for  the  "vacation"  of  a  highway,  frequently  by  proceed- 
ings upon  petition,  more  or  less  similar  to  proceedings 

urem,   41  Okla.   735,   51   L.    R.   A.  S.  848;    2  Wms.   Saund.,   161  note 

(N.   S.)    1082,   139   Pac.   830.  (12). 

37.  Donahue  v.  Keystone  Gas  39.  See  the  remarks  of  Black- 
Co.,  181  N.  Y,  313,  70  L.  R.  A.  burn,  J.,  in  Arnold  v.  Holbrook, 
761,  106  Am.  St.  Rep.  549,  73  N.  L.  R.  8  Q.  B.  96,  in  which  he  shows 
E.  1108.  See  3  Dillon,  Mun.  Corp.  that,  in  Duncomb's  Case,  Cro.  Car. 
S  1126.  366,  and  Absor  v.  French,  2  Show. 

38.  Carey  v.  Rae,  58  Cal.  159;  28,  usually  referred  to  in  support 
Irwin  V.  Yeager,  74  Iowa,  174,  37  of  the  right,  the  question  was 
N.   W.    136;    Campbell  v.   Race,   7  not  involved. 

Gush.    (Mass.)    408,    58   Am.    Dec  40.     Campbell  v.   Race,  7  Cush. 

728;    Holmes   v.    Seely,    19   Wend.  (Mass.)   408;    State  v.  Brown,  109 

(N.  Y.)   507;  Williams  v.  Safford.  N.    C.    802;    Morey    v.    Fitzgerald, 

7    Barb.     (N.    Y.)     309;     State    v.  .16  Vt.  487,  48  Am.   Rep.  811. 
Brown,    109    N.    C.    802,    14    S.    E.  41.     Holmes  v.  Seely,  19  Wend. 

98;    Morey    v.    Fitzgerald,    56    Vt.  (N.  Y.)    510;    White  v.  Wiley,   59 

487,   48  Am.   Rep.   811;    Taylor  v.  Hun.    618,    13   N.  Y.    Supp.   205. 
Whitehead,  2  Doug.    (Mich.)    745;  42.     Dawes  v.  Hawkins,  8  C.  B. 

Dawes    v.    Hawkins,    8    C.    B.    N.  (N.   S.)    848,   858. 


1536  Real  Peoperty.  [§  417 

for  the  establishment  of  a  highway.^^  The  owner  of 
land  immediately  abutting  on  the  highway  thus  vacated 
is,  if  the  highway  is  a  city  street,  usually  regarded  as 
deprived  of  proj^erty  by  reason  of  the  impairment  of 
his  right  of  access,  and  so  entitled  to  compensation.^^ 
The  courts  differ  as  to  whether  an  abutting  owner  is 
entitled  to  compensation  in  case  a  part  of  the  highway 
other  than  that  contiguous  to  his  land  is  vacated,  and 
even  those  which  recognize  a  possible  right  of  com- 
pensation in  such  case  differ  as  to  the  criteria  by  which 
to  determine  whether  he  suffers  substantial  injury  dif- 
ferent from  that  suffered  by  members  of  the  public 
generally,  so  as  to  be  entitled  to  compensation  in  the 
particular  case.^^* 

Some  courts  hold  that  the  public  rights  to  use  land 
for  a  highway  may  be  lost  by  adverse  i^ossession  on  the ' 
part  of  an  individual,  they  taking  the  view  that  the 
maxim  "Niillum  tempus  occurrit  reyi"  is  not  applicable, 
since  the  o^vnership  of  the  highway  is  to  be  regarded 
as  vested  in  the  municipality  or  quasi  municipality, 
rather  than  in  the  state.^^  Other  courts,  however,  deny 
that   a  highway  can   be   thus   extingiiishedj^^    and   this 

43.  15  Am.  &  Eng.  Law,  396  et  45.  City  of  Fort  Smith  v.  Mc- 
seq.;  Elliott,  Roads  &  Streets,  §§  Kibbin,  41  Ark.  45,  48  Am.  Rep. 
879-881.  19;  Inhabitants  of  Town  of  Litch- 

44.  1  Lewis,  Eminent  Domain,  field  v.  Wilmot,  2  Root  (Conn.) 
§  200  et  seq.;  3  Dillon,  Mun.  Corp.,  288;  Dudley  v.  Trustees  of  Frank- 
§  1160;  3  McQuillan,  Mun.  Corp.,  fort.  12  B.  Men.  (Ky.)  612;  City 
§  1405;  Elliott,  Roads  and  Streets,  of  Big  Rapids  v.  Comstock,  65 
§  877.  See  Oler  v.  Pittsburgh,  C,  Mich.  78;  Meyer  v.  City  of  Lincoln, 
C.  &  St.  L.  Ry.  Co.,  184  Ind.  431,  33  Neb.  566,  29  Am.  St.  Rep.  500, 
111  N.  E.  619;  Jones  v.  Aurora,  18  L.  R.  A.  146,  50  N.  W.  763; 
97  Neb.  825,  151  N.  W.  958;  Cham-  Ostrom  v.  City  of  San  Antonio, 
bersburg  Shoe  Mfg.  Co.  v.  Cum-  77  Tex.  345,  14  S.  W.  66;  Knight 
berland  Valley  R.  Co.,  240  Pa.  519,  v.  Heaton,  22  Vt.  480. 

87    Atl.    968.      Compare    Chenault  46.     Reed   v.    City   of   Birming- 

V.    Collins,    155    Ky.    312,    159    S.  ham,  92  Ala.  339,  9  So.  161;  Hoad- 

W.  834.  ley  v.  City  of   San  Francisco,   50 

44a.     See  editorial  note,  16  Co-  Cal.  265;  Ulmau  v.  Charles  Street 

lumbia  Law  Rev.  at  p.  139;  3  DU-  Ave.    Co.,    83    Md.    130;     Bice    v. 

Ion,  Mun.   Corp.,   p.   1842.  Town   of   Walcott,    64    Minn.    459, 


§  417] 


Public   Eights. 


1537 


would  seem  to  be  the  better  view,  since  the  municipality, 
so  far  as  it  can  he  considered  as  the  owner  of  the  high- 
way, is  so  merely  as  an  agent  of  the  state,  and  as  any 
adverse  acts  by  an  individual  constitute  an  obstruction 
of  the  highway,  and  are  consequently  a  public  nuisance, 
the  effect  of  the  opposite  ^dew  is  to  validate,  by  lapse 
of  time,  a  public  nuisance, — a  thing  which,  by  the  au- 
thorities generally,  cannot  be  done.^' 

Abandonment.     There   are  a  number  of  deci- 


sions to  the  effect  that  the  abandonment  and  consequent 
extinction  of  a  higliwa}"  may  be  shown  by  nonuser,  in 
conjunction  with  other  circumstances.^''  It  is  sometimes 
said  that  a  highway  is  not  lost  by  nonuser,^^  but  in 
this  respect  the  same  principle  apparently  applies  as 
in  the  case  of  private  easements  v"**^  nonuser  itself  not 
extinguishing  the  highway,  but  being  a  circumstance  to 
be  considered  with  other  circumstances,  in  determining 
whether  there  has  been  an  abandonment  thereof. 


67  N.  W.  69;  City  of  Vicksburg 
V.  Marshall,  59  Miss.  563;  Thomp- 
son V.  Major,  58  N.  H.  242;  Ho- 
boken  Land  &  Improvement  Co.  v. 
City  of  Hoboken,  36  N.  J.  Law 
540;  Driggs  v.  Phillips,  103  N.  Y. 
77,  8  N.  E.  514;  Heddleton  v.  Hen- 
dicks,  52  Ohio  St.  460;  Com.  v. 
Moorehead,  118  Pa.  St.  344,  4  Am. 
St.  Rep.  599;  Almy  v.  Church,  18 
R.  I.  182,  26  Atl.  58;  Ralston  v. 
Town  of  Weston,  46  W.  Va.  544, 
76  Am.  St.  Rep.  834,  33  S.  E. 
326;  Yates  v.  Town  of  Warren- 
ton,  84  Va.  337,  10  Am.  St.  Rep. 
860.    4    S.    E.    818. 

47.  Reed  v.  City  of  Birming- 
ham, 92  Ala.  339.  9  So.  161;  City 
of  Visalia  v.  .Jacob,  65  Cal.  434, 
52  Am.  Rep.  303,  4  Pac.  433; 
Wolfe  V.  Town  of  Sullivan,  133 
Ind.  331,  32  N.  E.  1017;  Terri- 
tory V.  Deegan,  3  Mont.  82;  Driggs 
V.    Phillips,    103    N.    Y.    77;    Sim- 


mons, V.  Cornell,  1  R.  I.  519.     See 
2  Wood,  Nuisances,  §  936. 

48.  Beardslee  v.  French,  7 
Conn.  125,  18  Am.  Dec.  86; 
Greist  v.  Amrhyn,  80  Conn.  280, 
68  Atl.  521;  City  of  Peoria 
V.  Johnston,  56  111.  45;  People 
v.  Cleveland,  C.  C.  &  St.  L. 
Ry.  Co.,  269  111.  555,  109  N. 
E.  1064;  Louisville,  N.  A.  &  C. 
Ry.  Co.  V.  Shanklin,  98  Ind.  573; 
Larson  v.  Fitzgerald,  87  Iowa,  402, 
54  N.  W.  441;  Holt  v.  Sargent, 
15  Gray  (Mass.)  97;  Burgwyn  v. 
Lockhart,  60  N.  C.  264;  Elliott, 
Roads  &  Streets,  §§  1172-1177. 

49.  Thompson  v.  Major,  58  N. 
H.  242;  Com.  v.  McNaugher,  131 
Pa.  St.  55,  18  Atl.  934;  Galbraith 
v.  Littiech,  73  111.  209;  McCarl 
V.  Clarke  County,  167  Iowa,  14, 
148  N.  W.  1015. 

50.  See  ante,  S  377. 


1538  Real  Propeety.  [§  417 

The  statute  occasionally  provides  that  the  failure 
to  open  a  highway  for  use  within  a  certain  time  after 
its  establishment  by  statutory  proceedings  shall  be 
regarded  as  an  abandonment,^^  and  sometimes  there  is 
a  provision  that  this  shall  be  the  result  of  a  failure  to 
use,  for  a  period  named,  a  highway  which  has  been 
opened. °- 

Effect  of  extinction.     When  the  highway  in- 


volves merely  a  right  of  user  by  the  public,  the  owner 
of  the  "fee,"  upon  the  extinction  of  the  highway,  re- 
sumes entire  dominion  over  the  land,  free  from  any 
rights  in  the  public.^'*  Usually,  the  owner  of  the  fee  is 
the  abutting  proprietor,  and  thus  the  extinction  enures 
to  his  benefit. ^^  In  some  jurisdictions  there  is  a  statu- 
tory provision  that  the  abutting  owner  shall  have  the 
land  in  such  case.'^ 

"When  the  "fee"  is  in  the  public,  there  is,  by  some 
cases,  a  reverter  of  the  land  to  the  original  owner  upon 
the  extinction  of  the  highway,  upon  the  theory  that  the 
public,  or  rather  the  state,  has  merely  a  determinable 

51.  Trotter  v.  Barrett,  164  111.  Fontaine,  106  Minn.  225,  119  N. 
262,  45  N.  E.  149;  Horey  v.  Vil-  W.  400;  Blain  v.  Staab,  10  N.  Mex. 
lage  of  Haverstraw,  124  N.  Y.  273,  743,  65  Pac.  177;  Heard  v.  Brook- 
26  N.  E.  532;  McClelland  v.  Miller,  lyn,  60  N.  Y.  242;  Lankin  v.  Ter- 
28  Ohio  St.  488;  Pickford  v.  City  williger,  22  Ore.  97,  29  Pac.  268; 
of  Lynn,  98  Mass.  491;  15  Am.  &  Paul  v.  Carver,  24  Pa.  St.  207. 
Eng.   Enc.  Law,   406.  64   Am.   Dec.   649. 

52.  McRose  v.  Bottyer,  81  Cal.  54.  Thomsen  v.  McCormick,  136 
122,  22  Pac.  393;  Herrick  v.  Town  111.  135;  Harrison  v.  Augusta  Fac- 
of  Geneva,  92  Wis.  114,  65  N.  W.  tory,  73  Ga.  447;  Paul  v.  Carver. 
1034;  Freeholders  of  Mercer  24  Pa.  St.  207,  64  Am.  Dec.  649; 
County  V.  Pennsylvania  R.  Co.,  45  Healey  v.  Babbitt,  14  R.  I.  533; 
N.  J.  Law.  82;  Barnes  v.  Midland  Dickenson  v.  Arkansas  City  Imp. 
Railroad  Terminal  Co.,  218  N.  Y.  Co.,  77  Ark.  570,  92  S.  W.  21, 
91,  112  N.  E.  926.  113   Am.    St.   Rep.   170. 

53.  Harris  v.  Elliott,  10  Pet.  55.  15  Am.  &  Eng.  Enc.  Law, 
(U.  S.)  25,  9  L.  Ed.  333;  Benham  420.  See  Scudder  v.  City  of  De- 
V.  Potter,  52  Conn.  248;  Smith  troit,  117  Mich.  77;  Haseltine  v. 
V.  Horn,  70  Fla.  484,  70  So.  435;  Nuss,  97  Kan.  228,  155  Pac.  55: 
Waller  v.  River  Forest,  259  111.  Edwards  v.  Smith,  42  Okla.  544, 
223,  102  N.  E.  290;    Steenerson  v.  142  Pac.  302. 


§  418]  Public   Eights.  1539 

fee.^^  By  other  decisions,  there  is  a  fee  simple,  and 
not  a  mere  determinable  fee,  in  the  public,  and  no  right 
of  reverter  exists.^" 

Turnpikes.     Turnpikes  are  highways,  the  use 

of  which  by  a  member  of  the  public  is  conditional  upon 
pa\anent  by  him  of  a  certain  fixed  compensation  or 
''toll."  Turnpikes  are  usually,  if  not  always,  estab- 
lished by  private  corporations  or  associations  of  individ- 
uals, mider  authority  granted  by  the  state,^^  and  the 
right  of  way  may  be  acquired  under  the  power  of  emi- 
nent domain,  as  in  the  case  of  any  ordinary  highway.'^'' 
The  proprietors  of  the  turnpike  usually  have  an  easement 
only  in  the  land  for  use  as  a  highway,'''^  but  may  have 
the  ownership  or  ''fee. "^^  The  turnpike  must  be  kept 
in  repair  by  the  proprietors  thereof,  and  for  injuries 

caused  by  negligent  failure  to  make  repairs  they  are 
liable.«2 

§  418.  Parks,  squares,  and  commons.  In  connec- 
tion with  the  subject  of  highways,  which  they  resemble 
as  involving  rights  of  user  in  the  individual  members 
of  the  public,  it  seems  proper  to  refer  to  parks,  public 
squares,  and  commons,   though  the   ownership  of  land 

56.  Gebhardt  v.  Reeves,  75  111.  §  261;  Randolph,  Eminent  Domain. 
.'!01;    Matthieson    &   Hegeler   Zinc      S    42. 

Co.  V.  La  Salle,  117  111.  411,  8  N.  60.     See   Wright    v.    Carter,    27 

E.    81;     Plumer    v.    Johnston.    63  N.  J.  Law,  76;  Robbins  v.  Borman, 

Mich.   165,    29   N.   W.   687;    Board  1    Pick.    (Mass.)    122;    Turner    v. 

of    Education     of    Van     Wert    v.  Rising  Sun  &  L.  Turnpike  Co.,  71 

Edsan,     18     Ohio     St.     221.      And  Ind.     547;      State     v.     Maine,     27 

see  Fairchild  v.  City  of  St.  Paul,  Conn.   641,  71  Am.  Dec.  89. 

46    Minn.    540,    49    N.    W.    325.  61.     See  People  v.  Newburgh  & 

57.  Pettingill  v.  Devin.  35  Iowa,  S.  Plank  Road  Co..  86  N.  Y.  1. 
344;    Tifft  v.    City   of  Buffalo,    82  62.     2    Shearman    &    R.    Negli- 
N.  Y.  204.  gence,    c.    16;     Elliott,    Roads    & 

58.  Com.  V.  Wilkinson,  16  Pick.  Streets  S§  111-116;  Carver  v.  De- 
(Mass.)  175,  26  Am.  Dec.  654;  troit  &  S.  Plank-Road  Co.,  61  Mich. 
Angell,  Highways,  S  8;  Elliott,  5?4,  28  N.  W.  721;  Baltimore  & 
Roads  &  St.  c.  4.  L.   T.  Co.   v.  Ca.ssell,  66  Md.    419. 

59.  1  Lewis,  Eminent  Domain,  ',()  Arn.  St.  Rep.  175,  7  Atl.  805. 


1540  Real  Peopeety.  [<§  418 

appropriated  to  these  purposes  is  usually  vested  in  the 
state  or  municipality,  and  consequently  the  rights  exer- 
cised therein  by  the  public  are  but  seldom  rights  in 
another's  land. 

The  term  ''park"  is  ordinarily  applied  to  a  tract 
of  land,  in  or  near  a  town  or  city,  which  is  subject  to 
state  or  munieiiDal  control,  and  designed  to  furnish  the 
public  with  opportunities  for  recreation  and  to  obtain 
fresh  air  and  exercise.  The  term  "square"  or  ''public 
square"  is  also  used  in  this  connection,  without  any 
very  precise  meaning,  but  usually  with  reference  to  a 
space  in  a  city,  under  municipal  control,  a  part  or  the 
whole  of  which  is  devoted  to  vegetation  of  an  orna- 
mental or  at  least  agreeable  character.  Land  may  be 
acquired  for  the  purpose  of  a  park  or  public  square 
by  direct  purchase,''^'^^  by  proceedings  under  the  power 
of  eminent  domain,^^  or  by  dedication  of  land  for  the 
purpose  by  a  private  individual.*'^' 

Commons.     The  term  "common"  is  sometimes 

used  to  describe  lands  open  to  use  by  all  the  inhabitants 
of  a  city  or  town,  and  subject  to  the  control  of  the  public 
authorities.  This  is  the  construction  usually  given  to 
a  grant  or  dedication  of  land  for  use  as  a  "common," 
it  being  in  effect  thereby  declared  that  the  land  shall 
be  open  for  use  by  the  public,  subject  to  municipal,  or, 
occasionally,  state,  control.^^ 

63-64.     Holt  V.   City   Council   of  67.     See    City    of    Cincinnati    v. 

Somerville,  127  Mass.  408;  People  White's  Lessee,  6  Pet.  (U.  S.)    431, 

V.  Common  Council  of  Detroit,  28  8     L.     Ed.    452;    Den     d.    Coniniis- 

Mich.    230,    15   Am.   Rep.    202.  .sioners  of  Town   of  Bath    v.   Boyd, 

65.  1  Lewis,  Eminent  Domain,  23  N.  C.  194;  City  of  Newport 
§  271;  Brooklyn  Park  Com'rs  v.  v.  Taylor,  16  B.  Men.  (Ky.)  699; 
Amstrong,  45  N.  Y.  234,  6  Am.  White  v.  Smith,  37  Mich.  291; 
Rep.  70;  West  Chicago  Park  Goode  v.  City  of  St.  Louis,  113 
Com'rs  V.  Western  Union  Tele-  Mo.  257,  20  S.  W.  1048;  Craw- 
graph  Co.,  103  111.  33;  St.  Louis  ford  v.  Mobile  &  G.  R.  Co.,  67 
County  Court  v.  GriswoH,  58  Mo.  Ga.  405;  Sheffield  &  TuscumbiM 
175.  St.  Ey.  Co.  v.  Moore,    83  Ala.  294: 

66.  See  post.   §   479.  Newell    v.    Town     of     Hancock,    67 


§  418]  Public    Rights.  1541 

In  the  New  England  colonies  the  term  "common" 
was  applied  to  a  particular  class  of  lands,  which  be- 
longed, not  to  the  municipality  or  to  individuals,  hut 
rather  to  associations  of  individuals.  This  system  of 
holding  lands  arose  from  the  frequent  practice,  upon  the 
founding  of  a  town,  of  reserving  a  large  portion  of  the 
territory  within  the  town  limits,  to  be  utilized  by  the 
settlers  in  common  for  pasture,  cultivation,  the  pro- 
curing of  timber  or  building  stone,  and  like  purposes. 
Tracts  of  land  thus  reserved  were  called  "commons," 
"common  lands,"  or  "general  fields,"  and  the  persons 
entitled  to  share  in  the  benefits  thereof  were  known  as 
"proprietors,"  in  contradistinction  to  those  who,  be- 
coming inhabitants  of  the  town  at  a  later  period,  were 
not  regarded  as  entitled  to  such  benefits.  As  time  went 
on,  these  common  lands  became  reduced  in  quantity, 
owing  to  the  extensive  allotments  of  parts  thereof  by 
the  proprietors  to  individuals,  and  those  which  re- 
mained common  came  gradually,  as  the  numbers  of  the 
non-proprietors  increased  so  that  they  controlled  the 
policy  and  public  opinion  of  the  town,  to  be  regarded 
as  the  property  of  the  town,  rather  than  that  of  the 
proprietors  or  their  descendants;  and  so  much  of  the 
old  common  lands  as  at  the  present  day  retain  their 
common  character  are  utilized  chiefly  for  park  and 
pasture  purposes,  for  the  benefit  of  all  the  inhabitants.^'^ 
There  have  been   a  number  of  decisions  in   regard  to 

N.     H.   244,   35   Atl.    253;    Trustees  son,  2    Johns.    Cli.   (N.  Y.)    320. 
of    Western    University      v.    Ecbin-  68.     See     Johns    Hopkins    Unlver- 

son,   12    Serg.  &  R.    (Pa.)   29;   Carr  sity    Studies  in  Historical  &  Politi- 

V.     Wallace,     7    Watts    (Pa.)    394;  cal  Science,  Series  1,    Nos.  II.,  IX., 

Bell   V.   Ohio  &  P.    E.   Co.,    25   Pa.  X.,   by     Prof.    H.    B.     A.lams,     and 

St.   161,   64  Am.  Dec.   687.  Series   4,   Nos.   XL,    XIL,   by   Mel- 

■So  occasionally,  in  colonial  grants,  ville  Egleston,  Esq. 
certain    land  was  given  for  use    as  The  same  system  of  commons   oc- 

a   "common,"   this   being  regarded  casionally     e.xisted    in    New     York, 

as  in  effect    a    gift  of  the  land  to  See   John    Hopkins    Studies,     Series 

the   town.      Town   of    Southampton  4,  No.   I.,  by   Irving   Elting,    Esq.; 

V.    Mecox   Oyster   Bay    Co.,     12    N.  Appley  v.  Trustees    of  Montauk,  38 

Y.    St.    Rep.    514;    Donton    v.    .lack-  Bnrb.    (K.   Y.)     275. 


1542  Real  Propekty.  [§  419 

these  couunon  lands  in  New  England,  as,  for  instance, 
to  determine  who  constitute  the  proprietors,  in  a  partic- 
ular case,^^  the  regularity  of  their  meetings  and  pro- 
ceedings,'^'^ or  the  validity  of  sales  or  allotments  of  the 
lands  to  individuals.'''^  Such  questions,  however,  are  of 
chiefly  local  interest,  and,  moreover,  have  lost  their 
importance  to  a  great  extent  with  the  disappearance 
of  the  common  lands  and  the  proprietary^  bodies,  and 
no  consideration  of  these  matters  will  be  here  at- 
tempted. 

Similar  to  the  New  England  coimnon  lands  were 
the  communal  lands  belonging  to  the  inhabitants  of 
French  and  Spanish  villages  in  parts  of  the  territory 
included  in  the  Louisiana  purchase.  The  titles  of  these 
conmaunal  lands  were  confirmed  in  favor  of  the  village 
Inhabitants  by  act  of  congress  after  the  cession  of  the 
territory  to  the  United  States.'^- 

§  419.  Customary  rights.  In  England,  persons  of 
a  certain  locality  or  of  a  certain  class  may  have,  by 
immemorial  custom,  a  right  to  make  use  of  land  belong- 
ing to  an  individual.  Thus,  there  may  be  a  custom 
for  the  inhabitants  of  a  certain  town  to  dance  or  play 
games  on  a  particular  piece  of  land  belonging  to  an  in- 

69.  See  Brackett  v.  Persons  Un-  cester  v.  Gaffney,  8  Allen  (Mass.) 
known,     53    Me.    228,    87   Am.    Dec.       11. 

548;     Stevens     v.      Taft,     3     Gray  72.     Savignac     v.      Garrison,      18 

(Mass.)    487.  How.   (U.  S.)    136,  15  L.    Ed.    290; 

70.  See  Copp  v.  Lamb,  12  Me.  Dent  v.  Emmeger,  14  Wall.  (U. 
312;  Dolloff  V.  Hardy,  26  Me.  545;  S.)  308,  20  L.  Ed.  838;  Glasgow 
Coffin  V.  Lawrence,   143  Mass.   110,  v.    Hortig,    1    Bla«k     (U.     S.)    595, 

9  N.  E.  6;  Goulding  v.  Clark,  17  L.  Ed.  110;  Hebert  v.  Lavalle, 
34  N.  H.  148;  Woodbridge  v.  27  111.  448;  Lavalle  v.  Strobel,  89 
Proprietors   of  Addison,   6  Vt.   204.  111.   370;    Haps   v.   Hewitt,     97     111. 

71.  See    Mitchell    v.      Starbuek,  498;  Page  v.  Scheibel,  11  Mo.  167; 

10  Mass.  5;  Dolloff  v.  Hardy,  26  City  of  St.  Louis  v.  Toney,  21 
Me.  545;  Coburn  v.  Ellenwood,  4  Mo.  243;  Carondelet  v.  City  of 
N.  H.  99;  Beach  v.  Fay,  46  Vt.  St.  Louis,  29  Mo.  527;  Glasgow 
337;  Dall  v.  Brown,  5  Cush.  v.  Baker,  85  Mo.  559;  Id.,  72  Mo. 
(Mass.)    289;    Inhabitants  of  Glou-  441. 


§  419] 


Public   Rights. 


154:5 


dividual/"^  or  to  go  thereon  in  order  to  get  water." ^ 
So  there  may  be  a  custom  for  fishermen  to  dry  nets  on 
certain  land,'-^  or  for  persons  in  a  certain  trade  (victna- 
lers)  to  erect  booths  upon  certain  private  land  during  a 
fair."^®  The  custom,  to  be  valid,  "must  have  continued 
from  time  immemorial,  without  interruption,  and  as 
of  right;  it  must  be  certain  as  to  the  place,  and  as  to 
the  persons;  and  it  must  be  certain  and  reasonable  as 
to  the  subject  matter  or  rights  created.'""'' 

A  right  cannot  be  acquired  by  custom  to  use 
particular  land  on  navigable  water  for  a  wharf  or  land- 
ing place,  since  this  would  in  effect  exclude  the  ow^ier 
from  all  use  of  the  land,  and  is  unreasonable;'*  and  so 
there  can  be  no  right  by  custom  to  maintain  a  building 
or  other  permanent  structure  on  a  person's  land.'*^ 
Likewise,  a  right  to  take  profits  from  land,  as  distinct 
from  the  mere  right  to  use  the  land,  cannot  be  estab- 
lished by  custom,  since  the  effect  of  such  a  custom  would 
be  to  exhaust  the  profits. *° 


73.  Fitch  V.  Bawling,  2  H. 
Blackst.  394;  Abbott  v.  Weekly,  1 
Lev.  176. 

74.  Eace  v.  Ward,  4  El.  &  Bl. 
702. 

The  public  may,  it  has  been  de- 
cided, acquire  a  prescriptive  right 
to  procure  from  a  spring  water 
for  a  drinking  trough  on  the  high- 
way. Kiser  v.  Douglas  County,  70 
Wash.  242,  41  L.  R.  A.  (N.  S.) 
1066,    126   Pac.   622. 

75.  Blundell  v.  Caterall,  5  Barn. 
&   Aid.     268,    295. 

76.  Tyson  v.  Smith,  9  Adol.  & 
E.    406. 

77.  Leake,  Prop,  in  Land,  552. 
See  Ck).  Litt.  110b;  Tyson  v.  Smith. 
9  Adol.  &  E.  406;  Goodman  v. 
City  of  Saltash,  7  App.    Cas.   633. 

78.  Talbott  v.  Grace,  30  Ind. 
389,   95  Am.   Dec.   703;    O'Neill  v. 


Annett,  27  N.  J.  L.  290,  72  Am. 
Dec.  364;  Thomas  v.  Ford,  63  Md. 
346,  52  Am.  Rep.  513;  Pearsall  v. 
Post,  20  Wend.  (N.  Y.)  Ill;  Post 
v.  Pearsall,  22  Wend.  (N.  Y.)  425; 
Bethum  v.  Turner,  1  Me.  Ill; 
Chambers  v.  Furray,  1  Yeates 
(Pa.)  167;  Cooper  v.  Smith,  9 
Serg.  &  R.  (Pa.)  25.  Compare 
Knowles  v.  Dow,  22  N.  H.  387. 

79.  Attorney  General  v.  Tarr, 
148  Mass.  309,  2  L.  R.  A.  87,  19 
N.  E.  358.  A  like  view  was  taken 
as  to  an  asserted  public  right 
to  pile  wood  on  an  individual's 
land.  Littlefield  v.  Maxwell,  31 
Me.  134,  50  Am.  Dec.  653. 

80.  Smith  v.  Gatewood,  Cro. 
Jac.  152;  Id.  sub  nom.  Gateward's 
Case,  6  Coke  59b;  Race  v.  Ward, 
4  El.  &  Bl.  702;  Hill  v.  Lord,  48 
Me.  83;   Cobb  v.  Davenport.  32  N. 


ibU 


Real  Property. 


[§  420 


Occasionally  in  tliis  country  it  lias  been  decided  that 
rights  to  use  private  land  cannot  thus  be  created  by 
custom,  for  the  reason  that  they  would  tend  so  to  bur- 
den land  as  to  interfere  with  its  improvement  and 
alienation,  and  also  because  there  can  be  no  usage  in 
this  country  of  an  immemorial  character.^^  In  one  state, 
on  the  other  hand,  the  existence  of  such  customary 
rights  is  affirmed,*-  and  in  others  this  is  assumed  in 
decisions  adverse  to  the  existence  of  the  right  in  the 
particular  case.^^ 

§  420.  Rights  of  fishing.  While  the  individual 
members  of  the  public  have  rights  of  fishing  in  waters, 
the  soil  below  which  is  the  property  of  the  state, ^^  ex- 
cept in  those  cases  in  which  an  exclusive  right  to  fish 
there  has  been  granted  by  the  state  legislature  or  other 
sovereign  authority,*^  they  have,  as  a  general  rule,  no 


J.  Law,  369;  Pearsall  v.  Post,  20 
Wend.  (N.  Y.)  Ill;  Post  v.  Pear- 
sall, 22  Wend.  (N.  Y.)  425;  Per- 
ley  V.  Langley,  7  N.  H.  233;  Nudd 
V.  Hobbs,  17  N.  H.  524;  Smith 
V.  Floyd,  18  Barb.  (N.  Y.)  522; 
Waters  v.  Lilley,  4  Pick.  (Mass.) 
145,  16  Am.  Dec.  333;  Turner  v. 
Selectmen  of  Hebron,  61  Conn. 
175,  14  L.  R.  A.   386,  22  Atl.   951. 

81.  Graham  v.  Walker,  78 
Conn.  130,  61  Atl.  98,  2  L.  R.  A. 
(N.  S.)  98.3,  112  Am.  St.  Rep.  93. 
3  Ann.  Cas.  641;  Ackerman  v. 
Shelp,  8  N.  J.  Law,  125;  Harris 
V.  Carson,  7  Leigh  (Va.)  632; 
Delaplane  v.  Crensliaw,  15  Grat. 
(Va.)  457.  See  Gray,  Perpet- 
uities, §§  572-586,  where  the  sub- 
ject of  this  section  is  fully  dealt 
with. 

82.  Sudd  V.  Hobbs,  17  S.  H. 
524;  Knowles  v.  Dow,  22  N.  H. 
387. 


83.  See  cases  cited  ante,  notes 
78-80. 

84.  Manchester  v.  Massachu- 
setts, 139  U.  S.  240;  Barbaro  v. 
Boyle,  119  Ark.  377.  178  S.  W. 
378;  Sollers  v.  Sollers,  77  M.  148, 
20  L.  R.  A.  94,  39  Am.  St.  Rep. 
404,  26  Atl.  188;  Inhabitants  of 
West  Roxbury  v  Stoddard,  7  Allen 

(Mass.)  158;  Lincoln  v.  Davis, 
53  Mich.  375.  51  Am.  Rep.  116, 
19  N.  W.  103;  Arnold  v.  Mundy, 
6  N.  .1.  Law,  1,  10  Am.  Dec.  356; 
Hooker  v.  Cummings,  20  Johns. 
(N.  Y.)  90,  11  Am.  Dec.  249;  Col- 
lins V.  Benbury,  25  N.  C.  277,  38 
Am.  Dec.  722;  Bell  v.  Smith,  171 
N.  C.  116,  87  S.  E.  987;  Sloan 
V.  Biemiller,  34  Ohio  St.  492; 
Carson  v.  Blazer,  2  Binn.  (Pa.) 
475;  Legoe  v.  Chicago  Fishing  Co.. 
24  Wash.  175,  64  Pac.  141. 

85.  See  Sollers  v.  Sollers.  77 
Md.    148.    39    Am.    St.    Rep.    404: 


§  421] 


Public    Rights. 


1545 


such  right  in  water  which  covers  land  belonging  to  a 
private  undividual.^^  There  is  an  exception  to  this  rule, 
however,  in  the  case  of  the  shore  of  tide  w^aters,  that  is, 
the  space  between  high  and  low  water;  and  although 
this  belongs  to  an  individual,  the  public  may  take  fish, 
including  shellfish,  thereon,^'^  provided  they  do  so  with- 
out trespassing  on  the  latter 's  land  above  high-water 
mark,^^  and  do  not  undertake  to  attach  fishing  appli- 
ances to  the  shore. ^^ 

§  421.  Rights  of  navigation.  Every  member  of  the 
public  has  the  right  of  navigation  in  waters  capable  of 
such  use,  without  reference  to  whether  the  land  be- 
neath the  water  belongs  to  the  public  or  to  individual 
owners.  The  rights  which  individual  owners  may  have 
in  the  land  below  the  water  or  in  the  shores  or  banks  are 


Power     V.     Tarzewells,     25     Grat. 

(Va.)  786;  Trustees  of  Brook- 
haven  V.  Strong,  60  N.  Y.  56; 
Heckman  v.  Swett,  107  Cal.  276, 
40  Pac.  420;  Fagan  v.  Armistead. 
33   N.   C.   433. 

86.     Smith  v.  Andrews  [1891]  2 
Ch.    .678;      Johnston     v.     O'Neill 

(1911)  App.  Gas.  552;  Holyoke 
Water  Power  Co.  v.  Lyman,  15 
Wan.  (U.  S.)  500,  21  L.  Ed.  133; 
Beckman  v.  Kreamer,  43  111.  447, 
92  Am.  Dee.  146;  Waters  v.  Lilley, 
4  Pick.  (Mass.)  145,  16  Am.  Dec. 
.333;  Lincoln  v.  Davis,  53  Mich. 
375.  51  Am.  Rep.  116,  19  N.  W. 
103;  Hooker  v.  Cummings,  20 
.Johns.  (N.  Y.)  90,  11  Am.  Dec. 
249;  Lembeck  v.  Nye,  47  Ohio 
St.  336,  21  Am.  St.  Rep.  828;  Bay- 
lor v.  Decker,  133  Pa.  St.  168: 
Winans  v.  Willetts,  —  Mich.  — , 
163  N.  W.  993;  Griffith  v.  Hol- 
raan.  23  Wash.  347,  83  Am.  St. 
Rep.  821,  54  L.  R.  A.  178,  63 
Pac.    239;    State   v.    Theriault,    70 


Vt.  617,  41  Atl.  1030,  43  L.  R.  A. 
290,  67  Am.  St.  Rep.  695.  See  New 
England  Trout  &  Salmon  Club  v. 
Mather,  68  Vt.  338,  33  L.  R.  A. 
569,  35  Atl.  323.  And  compare 
Hogg  V.  Beerman,  41  Ohio  St.  81, 
52  Am.  Rep.  71;  and  cases  cited 
post,   §   421,   note  99. 

87.  Bagott  V.  Orr,  2  Bos.  &  P. 
472;  Shiveley  v.  Bowlby,  152  U. 
S.  1,  38  L.  Ed.  331;  Bickel  v. 
Polk,  5  Har.  (Del.)  325;  Peck  v. 
Lockwood,  5  Day  (Conn.)  22; 
Moulton  V.  Libbey,  37  Me.  472,  59 
Am.  Dec.  57;  Wilson  v.  Inloes.  G 
Gill.  (Md.)  121;  Lakeman  v. 
Burnham,  7  Gray  (Mass.)  437; 
Allen   V.   Allen.    19   R.    I.    114. 

88.  3  Kent,  Comm.  417;  Bickel 
V.  Polk,  5  Har.  (Del.)  325;  Coo- 
lidge  V.  Williams,  4  Mass.  140; 
Cortelyou  v.  Van  Brundt,  2  Johns. 
(N.  Y.)    357.  3  Am.  Dec.  439. 

89.  Duncan  v.  Sylvester,  24  Me. 
482.  41  Am.  Dec.  400;  Matthews 
v.    Treat,    75    Me.    594;    Locke    v. 


1546 


Real  Pkopekty. 


[\  421 


subordinate  to  this  right  of  navigation  in  the  public, 
and  consequently  they  cannot  place  any  structure  or 
article  upon  the  land  below  the  water  which  is  calculated 
substantially  to  interfere  with  navigation.^^ 

"Floatable"  streams— that  is,  streams  which,  while 
not  capable  of  navigation  by  vessels  or  boats,  are 
capable  of  use  for  floating  timber  to  market — are,  in 
this  limited  sense,  navigable,  and  the  rights  of  private 
owners  of  the  land  thereunder  are  regarded  as,  to  some 
extent,  subject  to  the  rights  of  the  public  to  use  them 
for  floating  timber.''^  Streams  are  to  be  regarded  as 
"floatable,"  it  seems,  even  though  they  can  be  thus 
used  only  at  certain  seasons  of  the  year,  provided  these 
seasons  recur  with  regularity.''-  The  rights  of  the  pub- 
lic to  float  timber  on  such  streams  are  not  exclusive  of 
the  rights  of  owners  of  land  under  or  abutting  on  the 


Motley,  2  Gray  (Mass.)  265;  Whit- 
taker  V.  Burhans,  62  Barb.  (N.  Y.) 
237. 

90.  Barney  v.  Keokuk,  94  U. 
S.  324,  24  L.  Ed.  224;  Yolo  County 
V.  City  of  Sacramento,  36  Cal. 
193;  Charleston  &  S.  Ry.  Co.  v. 
Johnson,  73  Ga.  306;  Wadsworth 
V.  Smith,  11  Me.  278,  26  Am.  Dec. 
525;  Brooks  v.  Cedar  Brook  &  S. 
C.  R.  Imp.  Co.,  82  Me.  17,  7  L. 
R.  A.  460,  17  Am.  St.  Rep.  459, 
19  Atl.  87;  Com.  v.  Chapin.  5 
Pick.  (Mass.)  199;  Smith  v.  City 
of  Rochester,  92  N.  Y.  463;  Hogg 
V.  Beerman,  41  Ohio  St.  81,  52  Am. 
Rep.  71:  Barclay  Railroad  &  CoaT 
Co.  V.  Ingham,  36  Pa.  St.  194; 
Cobb  V.  Bennett,  75  Pa.  St.  326; 
Volk  V.  Eldred,  23  Wis.  410;  Ste- 
vens Point  Boom  Co.  v.  Reilly,  46 
Wis.    237,    49    N.    W.    978. 

91.  Lewis  V.  Coffee  County,  77 
Ala.  190,  54  Am.  Rep.  55;  Wads- 
worth  V.  Smith,  11  Me.  278,  26 
Am.  Dec.  525;  Thunder  Bay  River 


Booming  Co.  v.  Speechly,  31  Mich. 
336.  18  Am.  Rep.  184;  Carter  v. 
Thurston,  58  N.  H.  104,  42  Am. 
Rep.  584;  Shaw  v.  Oswego  Iron 
Co.,  10  Or.  371,  45  Am.  Rep.  146; 
Gatson  v.  Mace,  33  W.  Va.  14,  5 
L.  R.  A.  392,  25  Am.  St.  Rep. 
848,  10  S.  E.  60;  Olson  v.  Merrill, 
42  Wis.  203;  Lebanon  Lumber  Co. 
V.  Leonard,  68  Ore.  147,  136  Pac. 
891;  Fortson  Shingle  Co.  v.  Skag- 
land,  77  Wash.  8,  137  Pac.  304. 

92.  Lewis  v.  Coffee  County,  77 
Ala.  190,  54  Am.  Rep.  55;  Hubbard 
V.  Ben,  54  111.  110,  5  Am.  Rep.  98: 
Brown  v.  Chadbourne,  31  Me.  9. 
50  Am.  Dec.  641;  Holden  v.  Rob- 
inson Mfg.  Co.,  65  Me.  216;  Thun- 
der Bay  River  Booming  Co.  v. 
Speechly,  31  Mich.  336,  18  Am. 
Rep.  184;  Smith  v.  Fonda,  64 
Miss.  551,  1  So.  757;  Morgan  v. 
King,  35  N.  Y.  454,  91  Am.  Dec. 
58;  Commissioners  of  Burke 
County  V.  Catawba  Lumber  Co.. 
116    N.    C.    731,    47    Am.    St.    Rep. 


<^  421] 


Public    Rights. 


1547 


stream  to  dam  or  otherwise  utilize  the  waters  thereof, 
it  being  suflScient  if  there  is  left  a  reasonable  passage 
for  timber.^^ 

Incidental  to  the  right  of  navigation  is  the  right 
to  anchor  one's  vessel  in  the  stream  for  a  reasonable 
time,  either  adjoining  one's  own  land  or  elsewhere,  in 
such  a  way  as  not  unduly  to  obstruct  navigation  or  to  pro- 
vent  access  to  the  water,  for  purposes  of  navigation,  by 
other  persons  who  may  own  land  abutting  thereon/-**  But 
there  is  no  incidental  right  of  using  adjoining  land  for  a 
mooring  or  landing  place,*^^'  or  of  going  thereon  for  the 
purpose  of  towage.''^  On  principle,  moreover,  it  seems,^'' 
the  fact  that  the  public  have  a  right  of  navigation  over 
private  land  should  give  them  no  right  of  hunting,^'^'^ 


829,  840,  21  S.  E.   941,  and  note; 
Haines  v.  HaU,  17  Ore.  165. 

93.  Thunder  Bay  River  Boom- 
ing Co.  V.  Speedily,  31  Mich.  336, 
18  Am.  Rep.  184;  Kretzschmar  v. 
Meehan,  74  Minn.  211,  77  N.  W. 
41;  Foster  v.  Sears  port  Spool  & 
Black  Co.,  79  Me.  508,  11  Atl.  273; 
A.  C.  Conn.  Co.  v.  little  Suamico 
Lumber  Mfg.  Co.,  74  Wis.  652,  43 
N.  W.  660. 

94.  Gann  v.  Whitstable  Free 
Fishers,  11  H.  L.  Cas.  192;  Orig- 
inal Hartlepool  Collieries  Co.  v. 
Gibb,  5  Ch.  Div.  713;  Bainbridge 
V.  Sherlock,  29  Ind.  364,  95  Am. 
Dec.  644;  Rice  v.  Ruddiman,  10 
Mich.  125;  Delaware  River  Steam- 
boat Co.  V.  Burlington  &  B  Steam 
Ferry  Co.,  81  Pa.  St.  103.  Com- 
pare Wall  V.  Pittsburg  Harbor  Co., 
152  Pa.  St.  427. 

95.  Ensminger  v.  People,  47  111. 
384;  Bainbridge  v.  Sherlock,  29 
Ind.  364,  95  Am.  De«.  644;  Smith 
V.  Atkins,  22  Ky.  L.  Rep.  1619, 
53  L.  R.  A.  790,  60  S.  W.  93(T; 
State  V.  Wilson,  42  Me.  9;  Steam- 
boat   Magnolia     v.     'Mai-shall,     30 


Miss.  109;  Weems  S.  B.  Co.  v. 
People's  S.  B.  Co.,  214  U.  S.  345. 
53   L.   Ed.   1024. 

96.  Ball  V.  Herbert,  3  Term  R. 
253.  And  see,  as  to  trespasses  on 
the  banks  while  driving  logs,  or 
in  the  contruction  of  booms, 
Brown  v.  Chadbourne,  31  Me.  9, 
50  Am.  Dec.  641;  Hooper  v.  Hob- 
son,  57  Me.  273,  99  Am.  Dec.  769. 
Compare  Weise  v.  Smith,  3  Or. 
445,  450;  Lownsdale  v.  Gray's  Har- 
bor Boom  Co.,  21  Wash.  542,  58 
Pac.  663,  3  Kent.  Comm.  426. 

97.  See  editorial  note.  27  Harv. 
Law  Rev.  750. 

97a.  Adams  v.  Pease,  2  Conn. 
481;  Schulte  v.  Warren,  218  111. 
108,  13  L.  R.  A.  (N.  S.)  745,  75 
N.  E.  783;  Sterling  v.  Jackson, 
69  Mich.  488,  37  Am.  St.  Rep. 
405,  37  N.  W.  845;  Hall  v.  Alford. 
114  Mich.  165,  72  N.  W.  137,  38 
L.  R.  A.  205;  State  v.  Shannon, 
36  Ohio  St.  423;  Hooker  v.  Cum- 
mings,  20  Johns.  (N.  Y.)  90;Fitz- 
hardinge  v.  Purcell,  77  Law 
.Tourn.   Ch.   Div.   529. 


154S 


Beal  Property. 


[§  421 


or  fisliing-.^^     But  there  are  occasional  decisions  recog- 
nizing such  a  right.^^ 


98.  Hartman  v.  Tresise,  36 
Colo.  146,  4  L.  R.  A.  (N.  S.)  872, 
84  Pac.  685;  Schiilte  v.  Warren, 
218  111.  108,  75  N.  E.  783;  New- 
England  Trout  &  S.  Club  v. 
Mather,  68  Vt.  338,  33  L.  R.  A. 
569,   35   Atl.   323. 

99.  As  to  hunting,  see  Fores- 
tier  V.  Johnson,  164  Cal.  24,  127 
Pac.  156;  Diana  Shooting  Club  v. 
Husting,  156  Wis.  261,  145  N.  W. 
816.  As  to  fishing,  see  Willow 
River  Club  v.  Wade,  100  Wis,  86 
42  L.  R.  A.  305,  76  N.  W.  272; 
Bodi    V.    Winous    Point    Shooting 


Club,  57  Ohio  St.  226,  48  N.  E. 
944  (semhle) ;  Winous  Point 
Shooting  Club  v.  Slaughterbeck, 
96  Ohio,  139,  117  N.  E.  162  (sem.- 
ble.) 

The  Colonial  ordinance  in  force 
in  Massachusetts  and  Maine,  by 
which  the  title  to  the  flats  or 
shore  was  conferred  on  the  up- 
land owner,  expressly  reserved  the 
right  to  every  householder  in  the 
community  to  go  upon  such  flats 
for  fishing  and  fowling.  See 
Comm.  V.  Alger,  7  Cush.  (Mass.) 
53;  Moore  v.  Griffin,  22  Me.  350. 


Part  Five. 
the  transfer  of  rights  in  land. 


CHAPTER  XVIII. 

TRANSFER  BY  THE  GOVERNMENT. 

§  422.  The  nature  of  the  government  title. 

423.  Grants  by  the  United  States. 

424.  Grants  by  the  states. 

425.  Spanish  and  Mexican  grants. 

426.  Patents. 

§  422.  The  nature  of  the  government  title.  All 
the  land  in  the  United  States,  now  owned  by  individnals, 
formerly  belonged  either  to  the  federal  government,  to 
an  individual  state,  or  to  a  foreign  nationality,  which 
disposed  of  it  to  an  individual  proprietor  before  that 
particular  territory  became  a  part  of  this  country.  These 
grants  of  land  by  foreign  states  to  individuals,  made 
before  the  incorporation  of  that  particular  territory  in 
the  United  States,  are  the  chief  basis  of  titles  in  some 
parts  of  the  country,  and  it  seems  proper  to  briefly 
sketch  the  history  of  the  various  acquisitions  of  terri- 
tory by  this  nation,  in  order  bettor  to  understand  the 
various  classes  of  government  grants  on  which  the  exist- 
ing proprietary  rights  of  individuals  may  be  based. 

The  British  claim  of  dominion  over  the  territory 
included  witliin  the  original  thirteen  colonies  was  based 
upon  discovery,  consummated  by  possession,  the  wan- 
deriug  Indian  tribes  being  regarded  as  having  a  uiere 
right  of  occu[)ancy.^  The  dominion  and  ownership  tlius 
acquired  was,  in  some  of  the  colonies,  granted  by  the 
British  crown  to  individual  proprietors  or  proprietary 
companies,  by  whom  pa  its   of   the  land  were   in  turn 

1.     Johnson's     Lessee     v.     Mc-      L.    Ed.    681. 
Intosh,    8    Wheat.  (U.    S.)     543,    5 

(1549) 

2  R.  P.— 23  ^  ' 


1550  Real  Property.  [§  422 

granted  to  individuals.  In  otliers  of  tlie  colonies  the 
title  to  the  soil  remained  in  the  British  crown,  and 
grants  were  made  to  individuals  by  the  governor  of 
the  colony  in  the  name  of  the  king.  After  the  Revolu- 
tion, tlio  title  of  the  crown  to  lands  still  undisposed  of 
passed  to  the  states,  and  lands  belonging  to  the  original 
proprietaries  were  in  some  cases  confiscated.  Thus  it 
may  be  said  that  the  title  to  all  land  within  the  original 
thirteen  states  is  derived,  directly  or  indirectly,  from 
the  British  crown,  with  the  exception  only  of  con- 
siderable bodies  of  land  in  the  state  of  New  York,  the 
title  to  which  is  based  on  grants  by  the  Dutch  govern- 
ment or  its  representatives,  which  grants,  however,  were 
recognized  and  confirmed  by  the  British  crown  upon  the 
conquest  of  that  territory. 

The  territory  west  of  the  Allegheny  mountains  and 
east  of  the  Mississippi  river,  which  had  been  claimed 
by  the  French,  came,  as  a  result  of  the  French  and 
Indian  war,  and  of  the  treaty  of  Paris  in  1763,  under 
the  exclusive  dominion  of  England.  The  lands  within 
this  territory  were,  by  royal  proclamation,  set  apart  as 
''crown  lands."  After  the  separation  of  the  colonies 
from  England,  a  number  of  the  colonies  asserted  claims 
to  parts  of  these  crown  lands,  as  being  included  within 
their  limits  under  their  royal  charters.  These  claims, 
so  far  as  concerned  what  was  known  as  the  ''North- 
west Territory" — that  is,  the  territory  northwest  of 
the  Ohio  river — were  opposed  by  the  other  colonies  in 
the  negotiations  leading  up  to  the  Articles  of  Confedera- 
tion, and  finally  the  colonies  asserting  such  claims  ceded 
practically  all  their  lands,  or  their  claims  thereto,  within 
the  limits  of  such  territory,  to  the  confederation.  Of 
the  territory  south  of  the  Ohio  river,  the  state  of 
Kentucky  was  formed  out  of  that  part  of  Virginia  west 
of  the  Allegheny  mountains,  while  the  balance  of  this 
territory,  so  far  south  as  the  Spanish  territory  of  Flor- 
ida, was  ceded  to  congress  by  the  respective  states 
claiming  it. 


§  422]  Tkansfer  by  Government.  1551 

In  1803,  the  United  States  purchased  from  France 
the  ^'Louisiana"  territory',  which  was  bounded  on  the 
east  by  the  Mississippi  river,  and  on  the  west  by  a  line 
which  ran,  approximately,  along  the  present  eastern 
boundary  of  Idaho,  and  through  the  center  of  what  are 
now  Colorado  and  New  Mexico.  This  territory  extended 
north  to  Canada,  and  south  to  the  Arkansas  river  and 
the  present  northern  boundary  of  Texas.  In  1819,  the 
"Florida"  purchase  was  made  from  Spain,  this  includ- 
ing the  present  Florida  and  parts  of  Mississippi,  Ala- 
bama, and  Georgia.  In  1845,  Texas,  which  had  obtained 
independence  from  Mexico  in  1836,  was  annexed  to  the 
United  States.  In  1848,  as  a  result  of  the  war  with 
Mexico,  that  nation  ceded  to  the  United  States  territory 
included,  approximately,  within  the  present  limits  of 
California,  Nevada,  Utah  and  Arizona,  and  within  parts 
of  Colorado  and  New  Mexico,  it  extending  in  effect 
from  the  Pacific  ocean  to  the  Western  limit  of  the  Louis- 
iana purchase ;  and  subsequently,  in  1853,  a  compara- 
tively small  portion  of  territory,  adjoining  the  present 
Mexican  boundary,  w^as  purchased  from  Mexico,  in  or- 
der to  settle  a  question  as  to  the  limits  of  the  cession 
of  1848,  this  being  known  as  the  "Gadsden  Purchase." 
In  1846,  by  treaty  with  Great  Britain,  the  territory  com- 
prising that  now  occupied  by  Washington,  Oregon,  and 
Idaho,  which  had  been  in  dispute  between  the  two 
countries  for  many  years,  was  ceded  by  Great  Britain, 
this  country  ceding  in  return  all  claim  to  the  terri- 
tory to  the  North  thereof.  In  1867  the  ]irosent  terri- 
tory of  Alaska  was  purchased  from  Russia. 

While  by  far  the  greater  part  of  the  lands  of  which 
either  the  United  States  government  or  individual  states 
have  had  the  ownership  and  control  has  been  acquired 
either  from  a  foreign  state  or  by  cession  from  the 
general  government  to  a  state,  or  vice  versa,  land  may 
be  acquired  from  individual  owners,  by  either  the 
United  States  or  an  individual  state,  by  forfeiture,  es- 
cheat, the  exercise  of  the  jjowcj"  of  eminent  domain,  or 
voluntary   transfer. 


1552  Real  Propeety.  [§  423 

§  423.  Grants  by  the  United  States.  The  territory 
ceded  to  the  confederation  by  individual  states,  and 
that  acquired  by  the  present  government  from  foreign 
powers,  was,  for  the  most  part,  free  from  any  claims 
of  ownership  by  individuals,  and  was  therefore  open  to 
disposition  by  the  government  in  such  a  way  as  seemed 
expedient.  The  land  thus  owned  and  controlled  by  the 
government,  known  as  "public  land,"  has  been  grad- 
ually disposed  of  to  individuals  and  corporations  by 
various  methods,  intended,  and  usually  adapted,  to 
aid  in  the  settlement  and  industrial  development  of  the 
country.  The  more  important  methods  of  disposition 
wiiich  have  been  adopted  will  be  brief!}"  described. 

Public  sales.     In  the  early  period  of  the  land 


system  it  was  the  custom  to  offer  lands,  as  soon  as  sur- 
veyed, at  public  sale,  in  accordance  with  a  proclamation 
by  the  president,  and  at  a  minimum  price.^  This  sys- 
tem of  disposing  of  public  lands  gave  room  for  much 
abuse  and  oppression,  it  often  occurring  that  the  land 
had  been  improved  by  actual  settlers,  who  would  be  dis- 
possessed by  purchasers  at  these  sales,  and  it  gradually 
fell  into  disuse.  It  is  now  to  some  extent  abolished  by 
statute.^  The  amount  of  land  held  under  title  thus 
acquired  from  the  government  is  not  large. 

Pre-emption.     In  consequence  of  the  evils  re- 


sulting from  the  system  of  public  sales,  the  "pre-emp- 
tion" system  was  instituted,  by  which  one  who  settled 
on  one  hundred  and  sixty  acres  of  land,  improving  it 
and  erecting  a  dwelling  thereon,  was  entitled  to  pur- 
chase the  land  in  preference  to  any  other  person.  After 
settling  on  the  land,  he  was  required  to  file  a  statement 
or  "entry"  in  the  land  office  within  a  certain  time, 
declaring  his  purpose  to  claim  the  right  of  pre-emption, 
and  also  to  file  proof  that  he  was  entitled  to  the  right', 

2.  See  Rev.   St.   U.  S.   §§   2353,      9,  10;    1  Dembitz,  Land  Titles,  p. 
2357-2360.  620,  note. 

3.  See   26   U.   S.   Stat.    1099,    §§ 


§  423]  Transfer  by  Government.  1553 

and  to  pay  the  sum  fixed  by  law  as  the  purchase  price. 
He  then  received  a  certificate  of  entry.*  Before  making 
such  proof  and  payment,  the  claimant  was  regarded  as 
having  merely  a  privilege  to  purchase  the  land,  of  which 
he  might  be  deprived  by  the  government  by  a  grant  or 
sale  to  others.^  And  such  privilege  or  right  of  pre- 
emption could  not,  by  the  express  provision  of  the  stat- 
ute, be  assigned  to  another  person,  though  the  pre- 
emptor  could  transfer  his  interest  after  payment  and 
issue  of  the  certificate.^  The  pre-emption  law  has  now 
been  repealed.''' 

Homestead    entry.      Since    the    rejieal    of    the 


laws  allowing  public  sales  and  of  the  pre-emption  law, 
the  only  system  of  general  application  for  the  ac- 
quisition of  public  lands  is  under  the  ''homestead" 
law.  By  this  law,  any  citizen,  or  intending  citizen,  who 
is  an  adult  or  head  of  a  family,  w'ho  does  not  own  one 
hundred  and  sixty  acres  of  land  in  any  state  or  terri- 
tory, and  who  has  not  previously  exercised  the  home- 
stead right,  ma}"  make  application  for  the  benefit  of  the 
law,  and  this,  if  followed  by  bona  fide  occupation  and 
cultivation  of  the  land  for  five  years,  entitles  him  to  a 
certificate  and  patent  for  the  land,  wathout  making  any 
payment  other  than  the  land-office  fees.^ 

— —Railroad  grants.    Great  quantities  of  land  have 


been  granted  out  of  the  public  domain  of  the  United 
States  to  aid  and  stimulate  railroad  construction 
through  the  territory  in  which  the  land  lay.  Tliese 
grants  usually  consist  of  the  odd-numbered  sections  on 
both  sides  of  the  railroad  to  a  certain  distance,  frequent- 
ly five  miles,  and  the  even-numbered  sections,  thereby 

4.  Rev.   St.  U.   S.    §§    2257-2288      v.    Craft,    13    Wall.    (U.    S.)     291. 

5.  Frisbie  v.  Whitney,   9  Wall.       20    L.    Ed.    562. 

fU.    S.)    187,    19  L.   Ed.   668;    Yo-  7.     Act  March  3,  1891   (26  Stat. 

Semite  Valley  Case,  15  Wall.    (U.  1097). 

S.)  77,  21  L.  Ed.  82.  8.     Rev.  St.  U  S.  ?§   2289.  2;i02. 
0.     Rev.  St.  U.  S.  §  2263:  Myers 


155i  Real  Pkopehty.  [§  42^^ 

presumably  increased  in  value,  the  government  there- 
after holds  at  an  increased  price.  In  many  cases  these 
grants  to  aid  in  the  building  of  railroads  have  been 
made  to  the  state  in  which  the  railroad  was  to  be  built, 
instead  of  to  the  corporation  building  it.  In  such  cases 
the  state  takes  merely  the  legal  title,  in  trust  for  the 
railroad.^ 

These  grants  to  the  railroads  are  subject  to  any 
previous  rights  w^hich  may  have  been  acquired  by  others 
in  the  lands  granted,  under  the  pre-emption,  homestead, 
or  other  law^s.  •  To  compensate  for  any  loss  to  the  rail- 
road corporation  through  such  causes,  the  statute 
making  the  grant  usually  provides  for  ''indemnity 
lands"  at  a  greater  distance  from  the  railroad,  these 
being  lands  which  the  railroad  company  is  authorized 
to  take  in  lieu  of  those  in  its  original  grant  already 
taken  up  by  others. ^*^  A  railroad  grant  almost  in- 
variably takes  eifect  so  soon  as  the  survey  or  location  of 
the  proposed  railroad  through  the  public  land  has  been 
approved  by  the  land  office,  and  the  title  to  the  alter- 
nate sections,  as  named  in  the  act  constituting  the 
grant,  then  vests  in  the  railroad  company  as  of  the  date 
of  the  grant.  ^^ 

— —Grants  to  states.  Congress  has,  at  various  times 
and  for  divers  purposes,  granted  parts  of  the  land  to 
states.     Among  the  most  important  of  these  grants  are 

9.  Rice  V.  Minnesota  &  N.  W.  Iowa  Falls  Town  Lot  &  Land  Co. 
R.  Co.,  1  Black  (U.  S.)  358,  360,  v.  Griffey,  143  U.  S.  32.  36  L.  Ed. 
17   L.   Ed.    147;    Wulsey    v.    Chap-      64. 

man,    101    U.    S.    755,    25    L.    Ed.  11.     Van  Wyck  v.  Knevals,  106 

915;   Schulenberg  v.  Harriman,  21  U.    S.   360,    27   L.   Ed.   201;    Sioux 

Wall.    (U.   S.)    60,  22   L.   Ed.   554.  City   &    Iowa   Falls    Town   Lot    & 

10.  Leavenworth,  L.  &  G.  R.  Land  Co.  v.  Griffey,  143  U.  S.  32, 
Co.  V.  United  States,  92  U.  S.  36  L.  Ed.  64;  Curtner  v.  United 
733,  23  L.  Ed.  634;  Broder  v.  Na-  States,  149  U.  S.  672,  37  L.  Ed. 
toma  Water  &  Mining  Co..  101  U.  893;  St.  Paul  &  S.  C.  R.  Co.  v. 
S.  274.  25  L.  Ed.  790;  Winona  &  Winona  &  St.  P.  R.  Co.,  112  U. 
St.  P.  R.  Co..  V.  Barney.  113  U.  S.  S.    720,    28    L.    Ed.    872. 

618,  28  L.  Ed.  1109;  Sioux  City  & 


§  423]  Transfer  by  Government.  1555 

those  for  educational  purposes.  Usually,  section  six- 
teen in  every  township,  and  sometimes  also  section 
thirty-two,  has  been  granted  to  the  state  or  territory 
for  the  su]3port  of  schools;  besides  which,  grants  have 
been  made  for  state  universities,  agricultural  colleges, 
and  similar  purposes. 

To  each  state,  also,  in  which  there  were  then  public 
lands,  five  hundred  thousand  acres  were,  by  act  of 
congress,  granted  for  internal  improvements,  and  this 
grant  extends  to  each  new  state  as  it  is  admitted. ^^ 

By  the  ' '  swamp  land ' '  grant  of  1850,  all  swamp  and 
overflowed  lands  unfit  for  cultivation  on  that  account 
were  granted  to  the  several  states  in  which  they  were 
situated,  subject  to  certain  restrictions,  for  the  purpose 
of  aiding  in  the  reclamation  of  such  lands. ^^ 

Townsites.     The  statutes  of  the  United  States 


specify  three  methods  by  which  public  lands  may  be 
acquired  for  townsites:  (1)  The  president  may  reserve 
land  for  townsite  purposes  on  harbors  or  rivers,  or  at 
other  possible  centers  of  population,  and  lots  therein 
may  be  sold  at  public  outcry.  (2)  Persons  desiring  to 
found  a  city  or  town  on  public  land  may  locate  a  town- 
site  not  over  six  hundred  and  forty  acres  in  extent,  and 
lay  off  lots  therein,  and  the  president  may  then  author- 
ize the  sale  of  such  lots  at  a  minimum  price  of  ten  dol- 
lars per  lot.  (3)  Public  land  which  has  actually  been  set- 
tled upon  and  occupied  as  a  townsite  may  be  entered  in 
the  office  as  a  townsite  by  the  municipal  authorities 
thereof,  or  by  the  county  judge. ^^ 

Mineral  lands.    Lands  belonging  to  the  United 

States  which  contain  valuable  deposits  of  minerals  have 
usually  been  excepted  from  the  operation  of  general 
laws  for  the  acquisition  of  land  jjy  individuals,  such  as 
the  pre-emption  and  homestead  laws.     For  many  years, 

12.  Act  Sept.  8,  1841   (Rev.  St.  14.     Rev.    St.    §§    2380-2389;     2 
U.  S.  §  2378).                                            Copp.     Pub.    Land     Laws     (1890) 

13.  Rev.   St.   U.   S.   §   2479.  1010-1013. 


1556  Reau  Property.  [§  423 

mineral  lands  were  merely  leased  by  the  government  for 
the  purpose  of  working.  After  the  discoveries  of  pre- 
cious metals  in  the  western  territory,  the  mineral  de- 
posits on  the  public  lands  were  worked  by  the  immi- 
grants under  mining  regulations  established  by  them- 
selves, and  without  any  permission  from  the  government, 
and  the  courts  adopted  the  fiction  that  the  first  appro- 
priator,  in  accordance  with  the  local  mining  regulations, 
had  a  license  from  the  government  to  work  the  mines.^^- 
It  was  not  until  1866  that  congress  passed  an  act  pro- 
viding for  the  acquisition  of  mineral  lands  within  the 
public  domain  by  individuals  at  nominal  prices.  This 
statute  adopted  the  essential  features  of  the  local 
miners'  regulations  in  regard  to  the  acquisition  or  "lo- 
cation" of  claims,  and  all  legislation  by  congress  on  the 
subject  has  recognized  the  validity  of  such  regulations, 
as  well  as  of  state  statutes,  when  not  in  conflict  with 
the  acts  of  congress. ^*^ 

The  statutes  on  the  subject  of  the  acquisition  of 
claims  make  a  distinction  between  mineral  deposits  in 
''lodes"  or  "veins,"  these  being  equivalent  terms,  and 
"placer"  deposits.  A  "lode"  or  "vein,"  as  the  terms 
are  used  in  the  statute,  is  a  "line  or  aggregation  of 
metal  imbedded  in  quartz  or  other  rock  in  place,"  while 
the  term  "placer"  is  applied  to  ground  which  "contains 
mineral  in  its  earth,  sand,  or  gravel;  ground  that  in- 
cludes valuable  deposits  not  in  place,— that  is,  not  fixed 
in  rock, — but  wiiich  are  in  a  loose  state,  and  may,  in 
most  cases,  be  collected  by  washing  or  amalgamation 
without  milling. '  '^^ 

Any  citizen  or  intending  citizen,  upon  discovering 
a  vein  or  lode  of  minerals  on  public  land,  may  "locate" 
a  claim  thereto  by  marking  the  limits  of  his  claim  on 

15.  Sparrow  v.  Strong,  3  Wall.  on    the    subject    are    to    be    found 
(U.  S.)    97,  18  L.  Ed.  49;    1   Bar-  in   Rev.    St.    §§    231S,    2352. 
ringer    &    Adams,    Mines    &    Min-  17.     Mr.  Justice  Field  in  United 
ing,  196.  States  v.  Iron  Silver  Min.  Co.,  128 

16.  The  United  States  statutes  U.   S.   673,   32  L.   Ed.   571. 


<§>  424]  Teansfer  by  Government.  1557 

the  ground,  and  in  some  states,  by  local  requirements, 
by  posting  notice  of  the  claim,  and  recording  a  certifi- 
cate of  the  location.^^  The  extent  of  the  claim  is,  in 
the  c-ase  of  a  lode  or  vein,  limited  by  the  United  States 
statute  to  fifteen  hundred  feet  in  the  direction  in  which 
the  lode  or  vein  runs,  and  three  hundred  feet  on  each 
side  of  the  vein ;  the  boundaries  running  in  the  direction 
of  the  vein  being  known  as  "side"  lines,  and  those  run- 
ning across  the  vein  as  "end"  lines.  The  locator  is 
entitled  to  any  ore  within  the  space  marked  by  these 
surface  lines  extended  downward  vertically,  and  may 
follow  the  vein  across  his  side  lines,  even  though,  in 
so  doing,  he  takes  ore  from  beneath  the  surface  claim 
of  another,  but  he  cannot  follow  the  vein  across  his  end 
lines. 

A  placer  claim  or  location  is  limited  to  one  hundred 
and  sixty  acres  in  case  the  location  is  made  by  an  asso- 
ciation of  not  less  than  eight  bona  fide  locators,  and  to 
twenty  acres  in  the  case  of  a  location  by  an  individual. 

In  order  that  one  who  has  located  a  claim  may  con- 
tinue to  hold  it,  he  must  do  work  or  make  improvements 
thereon  to  the  value  of  at  least  one  hundred  dollars  in 
each  year,  and,  in  case  of  his  failure  so  to  do,  the  claim 
is  forfeited,  and  open  to  location  by  another  person.'" 

§  424.  Grants  by  the  states.  Of  tlie  lands  witliin 
the  original  thirteen  colonies,  the  larger  part  had,  at 
the  time  of  the  American  Revolution,  been  granted  to 
individuals  or  to  associations,  to  hold  in  private  owner- 
ship, and  their  rights,  except  in  so  far  as  the  lands  were 
confiscated  for  disloyalty,  were  not  affected  by  the 
transfer  of  the  sovereignty  to  the  state.  Those  lands, 
however,  which  had  not  been  granted  away  by  the 
crown^  passed  to  the  respective  state  governments  as 
successors  to  the  crown,  and  as  representatives  of  the 

18.  Barringer  &  AdamH,  Mines       ringer    &    Adams,    Mines    &    Min- 
&  Mining,  c.  7.  ing  c.   9. 

19.  Rev.  St.  U.  S.   §  2324;    Bar- 


1558  Eeal  Pbopebty.  [<^  424 

public.  Such  lands,  the  title  to  which  was  thus  vested 
ill  any  of  the  original  states,  have  been  disposed  of 
either  by  special  legislative  grants,  or  in  accordance 
with  a  regular  statutory  system,  established  for  the 
purpose,  providing  for  their  survey  and  sale  to  persons 
making  formal  application  to  the  state  authorities. 

The  territory  ceded  by  certain  states  to  the  general 
government  was,  to  some  extent,  incumbered  by  grants 
previously  made  to  indniduals  by  the  ceding  state,  and 
these  grants  were  usually,  by  the  agreement  for  cession, 
recognized  by  the  United  States.  Of  the  lands  of  which 
the  title  thus  became  vested  in  the  states,  the  most  im- 
portant were  those  under  tidal  and  navigable  waters, 
over  which  the  state  governments  have  always  exercised 
control,  and  which  they  have,  as  a  general  rule,  not 
granted  away  to  individuals,  the  policy  of  the  states, 
however,  differing  among  themselves  in  this  regard.^" 

Within  the  territory  ceded  to  the  United  States  by 
foreign  governments,  the  states  formed  therefrom  have 
no  rights  to  vacant  lands  except  as  these  may  have  been 
granted  to  them  by  the  United  States  government. 
Such  grants  have,  however,  as  above  stated,  been  made 
to  a  very  considerable  extent,  and  the  lands  so  granted 
to  the  states  they  have  disposed  of  to  individuals  and 
corporations  in  various  ways. 

The  land  under  navigable  waters  within  the  limits 
of  the  territory  ceded  to  the  United  States,  either  by 
one  of  the  states  or  by  a  foreign  country,  passed  to  the 
United  States  for  the  benefit  of  the  whole  people,  and 
in  trust  for  the  several  states  to  be  ultimately  created 
out  of  such  territory,  and,  upon  the  admission  of  any 
part  of  such  territory  as  a  state,  such  lands  pass  ipso 
facto  to  the  state  government,  subject,  however,  to  any 
grants  of  rights  therein  which  may  have  been  made  for 
appropriate  purposes  by  the  United  States  government 

20.     Martin  v.  WaddeU's  Lessee,       38  L.  Ed.  331. 
16  Pet.  (U.  S.)  367,  10  L.  Ed.  997;       See  ante,   §§   300,  301. 
Shiveley   v.   Bowlby,   152   U.   S.   1, 


§  424]  Transfer  by  Government.  1559 

while  holding  the  country  as  a  territory.  Consequently, 
the  new  states  admitted  into  the  Union  since  the  adop- 
tion of  the  constitution  have  the  same  rights  as  the 
original  states  in  the  tide  waters,  and  in  the  lands  under 
them,  within  their  respective  jurisdictions,  and  they  may 
accordingly  grant  rights  therein  to  individuals,  as  it 
may  seem  most  expedient,  subject  only  to  the  paramount 
rights   of  navigation   and  commerce.^^ 

The  vacant  lands  which  belonged  to  the  state"  of 
Texas,  lying  within  its  limits,  never  became  part  of  the 
public  domain  of  the  United  States,  there  being  an 
express  provision  to  that  effect  in  the  resolutions  passed 
by  congress  for  its  admission  as  a  state.-^  These  lands 
have  been  gradually  disposed  of,  usually  by  locations 
under  ''land  certificates,"  these  certificates  having  been 
issued  for  various  purposes,  as  to  encourage  settlement, 
to  reward  participants  in  the  War  of  Independence,  or 
their  heirs,  and  to  promote  the  construction  of  rail- 
roads.^^ 

The  systems  and  regulations  adopted  by  the  various 
states  in  disposing  of  their  public  lands  have  been  of 
the  most  diverse  character.  Usually,  however,  a  war- 
rant is  issued,  either  to  one  entitled  as  a  beneficiary  by 
some  legislative  act,  or  in  consideration  of  the  payment 
of  a  sum  fixed  by  law,  this  warrant  authorizing  him  to 
"locate"  or  "enter"  a  certain  number  of  acres  in  the 
public  domain.  The  holder  of  the  warrant  then  selects 
his  land,  and  files  witli  a  desiunatod  official  a  description 
of  the  land,  this  being  kno%vn  as  the  "entry."  The 
lan^  so  applied  for  is  then  usually  surveyed  by  the 
]mblic  surveyoi',  and,  after  such  survey,  and  his  com- 
pliance witli  all  the  other  requirements  of  the  statute, 
the  applicant  is  entitled  to  a  "patent"  or  grant  from 
the  state.'-^"* 

21.  Shiveley  v.  Bowlby,  152  U.      Texas   lands    is   clearly   stated    in 
S.  1,  :',8  L.  Ed.  331.  1  Dembitz,  Land  Titles,  5G1  et  seq. 

22.  5  U.   S.    Stat.   797.  24.     See     2     Minor.     Institutes. 

23.  The    mode    of    dispo.sul    of      898;   1  Dembitz,  Land  Titles,  500; 


1560  Keal  Propebty.  [§  425 

§  425.  Spanish  and  Mexican  Grants.  Witliin  the 
territory  ceded  to  the  United  States  by  France,  Spain, 
and  Mexico,  there  existed,  at  the  time  of  the  cession, 
private  rights  based  upon  grants  previously  made  by 
the  nation  having  dominion  therein,  and  tliese  grants 
the  United  States  government  was,  either  by  express 
stipulation  in  the  treaty  to  that  effect,  or  by  provisions 
preserving  rights  of  property,  required  to  recognize. 

Though  the  Louisiana  territory  was  purchased  from 
France,  most  of  the  grants  made  therein  before  its  ces- 
sion to  the  United  States'  were  made  by  the  Spanish,  and 
not  by  the  French,  government,  the  territory  having 
passed  from  the  former  to  the  latter  but  a  short  time 
previously.  The  grants  made  within  the  limits  of  the 
Florida  purchase  previous  to  the  treaty  of  cession  were 
expressly  recognized  in  that  treaty. 

Before  the  cession  of  territory  by  Mexico  to  the 
United  States,  numerous  grants  had  been  made  by 
that  government  from  the  time  of  its  acquisition  of  in- 
dependence from  Spain,  early  in  the  nineteenth  century. 
Grants  made  before  that  period  w^ere  by  the  Spanish 
crowai,  acting  through  the  governor  or  viceroy. 

In  the  performance  of  its  treaty  obligations  to  recog- 
nize these  prior  existing  grants  of  land  in  the  ceded 
territory,  this  government  has  adopted  the  policy  of 
requiring  all  persons  claiming  under  grants  made 
previous  to  the  particular  cession  in  question  to  submit 
their  claims  to  examination  either  by  commissioners 
named  for  the  purpose,  or  by  the  federal  courts,  and 
the  claims  thus  submitted  have  been  the  subject  of  many 
adjudications,  frequently  of  an  adverse  character. 

Lands  comprised  within  the  limits  of  the  present 
state  of  Texas  have  been,  iii  succession,  the  subject 
of  grant  by  the  Spanish  government,  the  Mexican 
government,  the  Mexican  state  of  Coahuila  and  Texas, 
the  republic  of  Texas,  and  the  present  state  of  Texas.^^ 

23  Am,  &   Eng.  Encyc.   Law    (1st  25.     See    Republic   of   Texas    v. 

Ed.)   53  et  seq.  Thorn,    3    Tex.     505;     Norton    v. 


§  426]  Transfer  by  Government.  1561 

Grants  made  by  the  previous  sovereignties  have  always 
been  recognized  by  the  present  state  of  Texas. 

§  426.  Patents.  A  patent  is  a  document  issued 
by  the  government  to  one  to  whom  it  has.  transferred  or 
agreed  to  transfer  land,  in  order  to  vest  in  the  trans- 
feree the  complete  legal  title,  or  to  furnish  evidence  of 
the  transfer.  Patents  are  regularly  issued  by  the 
United  States  government,  and  also  by  the  state  govern- 
ments, to  persons  who  have,  by  the  proper  proceedings, 
established  their  right  to  the  ownership  of  land  previ- 
ously belonging  to  the  United  States  or  the  state.  The 
patent  is,  in  form,  a  conveyance  of  the  land,  and  must, 
when  issued  by  the  United  States,  be  signed  in  the  name 
of  the  president,  and  sealed  with  the  seal  of  the  general 
land  office,  and  countersigned  by  the  recorder.-*^  A 
state  patent  must  usually  be  signed  by  the  governor, 
and  sealed  with  the  state  seal.-'^ 

A  patent  is  necessary  to  pass  a  perfect  title  to 
public  land  in  all  cases  except  when  the  legislative 
branch  of  the  government  has  made  a  grant  taking- 
effect  in  praesentiP  Consequently,  when  no  such  pre- 
vious grant  has  been  made,  the  patent  constitutes,  and 
is  necessary  for,  the  transfer  of  the  legal  title.-^  When, 
on  the  other  hand,  there  has  been  a  previous  grant 
taking  effect  in  praesenti,  the  purpose  of  the  issue  of 
the  patent  is  not  to  transfer  the  title,  but  to  furnish 
evidence  of  the  transfer,  or  to  show  compliance  with 

Mitchell,    13    Tex.    51;     Jones    v.  ter 'v.  Ruddy,     166  U.   S.   495,   41 

Muisbach,  26  Tex.  237.  L.   Ed.  1091. 

26.  McGarrahan  v.  New  Idria  29.  McGarrahan  v.  New  Idria 
Min.  Co.,  96  U.  S.  316,  24  L.  Ed.  Min.  Co.,  96  U.  S.  316,  24  L.  Ed. 
630.    See  Rev.  St.  U.  S.  §  450.  630;    Langdon    v.    Sherwood,    124 

27.  See  State  v.  Morgan,  52  u.  S.  74,  31  L.  Ed.  344;  City  of 
Ark.  150,  12  S.  W.  243;  Exum  v.  Brownsville  v.  Basse,  36  Tex.  500; 
Brister,  35  Miss.  391;  Hulick  v.  Roads  v.  Symmes,  1  Ohio,  281, 
Scovil,  9  111.  159;  Jarrett  v.  13  Am.  Dec.  621;  Carter  v.  Ruddy, 
Stevens,  36  W.  Va.  445,  15  S.  E.  Kit;  u.  S.  495,  41  L.  Ed.  1091; 
445.  Wood    V.    Plttman,    113    Ala.    212, 

28.  Wilcox  V.  Jackson,  13  Pet.       20   So.   972. 
(U.   S.)    498,   10   L.   Ed.  264;    Car- 


1562  Real  Pbopeety.  [§  426 

the  conditions  thereof,  obviating,  in  any  legal  contro- 
versy, the  necessity  of  other  proof  of  title.^° 

Even  when  there  has  been  no  legislative  grant  of 
the  land,  the  government,  upon  the  payment  of  the  pur- 
chase price  of  land  by  an  individual,  and  other  com- 
pliance with  the  statutory  requirements,  thereafter 
holds  the  legal  title,  as  any  other  vendor  of  land  who 
has  received  the  purchase  money,  in  trust  for  the  ven- 
dee.^ ^  But  this  mere  equitable  title  will  not  support  an 
action  of  ejectment  at  common  law,  and  for  that  puriDoso 
the  legal  title  must  be  acquired  by  the  issue  of  a 
patent.^2  In  many  of  the  states,  however,  it  is  pro- 
vided by  statute  that  certificates  issued  b}^  the  United 
States  land  office,  showing  the  making  of  final  proof  and 
pajanent,  and  so  entitling  the  holder  to  a  patent,  shall 
be  prima  facie,  evidence  of  title  sufficient  to  support  an 
action  of  ejectment.^^  But  a  distinction  is  made  in  this 
respect  between  receipts  issued  by  the  land  office  after 
final  proof,  and  receipts  issued  merely  to  show  that  an 
application  or  ''filing"  has  been  made,  and  the  latter 
will  not,  even  under  these  statutes,  support  ejectment,^* 
When  there  has  been  a  grant  taking  effect  in  praesenti, 

30.  Morrow  v.  Whitney,  95  U.  v.  Sherwood,  124  U.  S.  74,  41  L. 
S.  551,  24  L.  Ed.  456;  Wright  v.  Ed.  1091;  Seward's  Lessee  v. 
Roseberry,  121  U.  S.  488,  30  L.  Hicks,  1  Har.  &  McH.  (Md.)  22. 
Ed.  1039;  Deseret  Salt  Co.  v.  Tar-  33.  See  Balsz  v.  Liebenow 
pey,  142  U.  S.  241,  35  L.  Ed.  999;  (Ariz.)  36  Pac.  209;  Surginer  v. 
Kernan  v.  Griffith,  27  Cal.  89;  Paddock,  31  Ark.  528;  Case  v. 
Lee  V.  Summers,  2  Ore.  267.  Edgeworth,    87    Ala.    203;     Whit- 

31.  Carroll  v.  Safford,  3  How.  taker  v.  Pendola,  78  Cal.  296.  20 
(U.  S.)  441,  11  L.  Ed.  671;  Pac.  680;  Davis  v.  Freeland's 
Witherspoon  v.  Duncan,  4  Wall.  Lessee,  32  Miss.  645;  Pierce  v. 
(U.  S.)  210.  18  L.  Ed.  339;  Frace,  2  Wash.  St.  81,  26  Pac. 
Hussman  v.  Durham,  165  U.  S.  192,  807;  McLane  v.  Bovee,  35 
144,  41  L.  Ed.  664;   Brill  v.  Stiles,  Wis.   27. 

35    HI.    305,    85    Am.    Dec.    364;  34.     Balsz  v.   Liebenow    (Ariz.) 

Arnold    v.    Grimes,    2    Iowa,    1.  36  Pac.  209;  Hemphill  v.  Davis,  38 

32.  Hooper  v.  Scheimer,  23  Cal.  577;  Dale  v.  Hunneman,  12 
How.  (U.  S.)  235,  16  L.  Ed.  452;  Neb.  221,  10  N.  W.  711;  Adams  v. 
Gibson  v.  Chouteau,  13  Wall.    (U.  Couch,    1   Okl.    17. 

S.)    92,    20   L.    Ed.    534;    Langdon 


§  426] 


Transfer  by  Government. 


1563 


the  grantee  may,  even  without  the  aid  of  any  statute, 
bring  ejectment,  as  having  the  legal  title,  though  a 
patent  has   not  been  issued  to   him.^^ 

A  patent  is,  as  evidence  of  title,  conclusive  in  a 
court  of  law  as  against  collateral  attack,  unless  it  is 
invalid  on  its  face  for  insufficiency  of  language  or 
execution,  or  unless  it  is  void  for  want  of  power  to  issue 
it,  as  when  the  land  had  been  previously  granted,  or 
was  reserved  from  sale.^'^'  In  equity,  however,  a  patent, 
valid  on  its  face,  can,  as  against  others  than  bona  fide 
purchasers  of  the  land  for  value,  be  attacked,  for  fraud 
in  its  procurement  or  mistake  in  its  issuance,  either  by 
the  government  or  by  a  person  otherwise  entitled  to 
the  land;'''  and  if  the  patent  has  been  issued  to  one 
other  than  tlie  person  entitled  thereto,  he  may  procure 
a  decree  establishing  a  constructive  trust  in  his  favor, 
and   requiring  the   patentee   to   make   a  convevanee   to 


35.  Deseret  Salt  Co.  v.  Tarpey, 
142  U.  S.  241,  35  L.  Ed.  999; 
Nothern  Pac.  R.  Co.  v.  Cannon 
fC.  C.)  46  Fed.  224;  Southern 
Pac.  Co.  V.  Burr,  86  Gal.  279,  24 
Pac.  1032;  Northern  Pac.  R.  Co. 
V.  Majors,  5  Mont.  111.  2  Pac. 
322. 

36.  Field  v.  Seahury,  19  How. 
(U.  S.)  323.  15  L.  Ed.  650;  Sher- 
man V.  Buick,  93  U.  S.  209.  23  L. 
Ed.  849:  Steel  v.  St.  Louis  Smelt- 
ing &  Refining  Co..  106  U.  S.  447, 
27  L.  Ed.  226;  Wright  v.  Rose- 
berry,  121  U.  S.  488,  30  L.  Ed. 
1039;  Davis'  Adm'r  v.  Weibbold, 
139  U.  S.  507,  35  L.  Ed.  2:i8; 
State  V.  Morgan,  52  Ark.  150,  12 
S.  W.  243;  Moore  v.  Wilkinson,  13 
Cal.  488;  Laneenoiir  v.  Shanklin, 
57  Cal.  70:  Bledsoe's  Devisees  v. 
Wells,  4  Bibb.  (Ky.)  329;  State 
v.  Sioux  City  &  P.  R.  Co.,  7  Nel'. 
357;    Jackson   v.    Hart,   12   .Johns. 


(N.  Y.)  77,  7  Am.  Dec.  280;  Web- 
ster V.  Clear,  49  Ohio  St.  392,  31 
N.  E.  744;  Norvell  v.  Camm,  6 
Munf.  (Va.)  233.  8  Am.  Dec.  742; 
Jarrett  v.  Stevens,  36  W.  Va.  445, 
15  S.  E.  177. 

37.  St.  Louis  Smelting  &  Re- 
fining Co.  v.  Kemp,  104  U.  S.  636, 
26  L.  Ed.  875;  Sparks  v.  Pierce, 
115  U.  S.  408.  29  L.  Ed.  428; 
Sanford  v.  Sanford,  139  U.  S.  642, 
35  L.  Ed.  290;  United  States  v. 
San  Jacinto  Tin  Co.,  125  U.  S. 
273,  31  L.  Ed.  747;  United  States 
V.  Missouri,  K.  &  T.  Ry.  Co.,  141 
U.  S.  358.  35  L.  Ed.  766:  United 
States  V.  Marshall  Silver  Min.  Co., 
129  U.  S.  579,  32  L.  Ed.  734;  Colo- 
rado Coal  &  Iron  Co.  v.  United 
States,  123  U.  S.  307,  31  L.  Ed. 
182;  Jackson  v.  Lawton,  10  Johns. 
(N.  Y.)  23,  6  Am.  Dec.  311;  Ro- 
niain  v.  Lewis,  39  Mich.  233,; 
Norvell  v.  Camm,   6  Munf.    (Va.) 


1564 


Real  Property. 


[§  426 


him."^  The  issuance  of  a  patent,  however,  raises  the 
presumption  that  it  was  validly  issued,  and  one  seeking 
to  set  it  aside  must  sustain  his  averments  in  that  regard 
by  clear  proof.^'' 

A  patent,  when  issued,  dates  back,  as  against  in- 
tervening claimants,  to  the  time  when  the  equitable 
title  vested  in  the  patentee  by  payments  of  the  purchase 
price,  or  otherwise.^® 


238.  8  Am.  Dec.  742;  State  v. 
Bachelder,  5  Minn.  223  Gil.  178), 
80  Am.  Dec.   410. 

38.  Stark  V.  Starrs,  6  WaU.  (U. 
S.)  412,  18  L.  Ed.  928;  Widdi- 
combe  v.  Childers,  124  U.  S.  400, 
31  L.  Ed.  427;  Cornelius  v.  Kes- 
sel,  128  U.  S.  456,  32  L.  Ed.  482: 
Bernier  v.  Bernier,  147  U.  S.  242, 
37   L.   Ed.   152. 

39.  Maxwell  Land-Grant  Case, 
121    U.    S.    325,    30    L.    Ed.    949; 


Schnee  v.  Schnee,  23  Wis.  377,  99 
Am.  Dec.  183;  City  of  Mobile  v. 
Eslava,  9  Port.  (Ala.)  577;  33 
Am.  Dec.  325. 

40.  Gibson  v.  Chouteau,  13 
Wall.  (U.  S.)  92,  20  L.  Ed.  5-34; 
Hussman  v.  Durham,  165  IT.  S. 
144,  41  L.  Ed.  664;  Waters  v.  Bush, 
42  Iowa,  255;  Reynolds  v.  Ply- 
mouth County,  55  Iowa,  90; 
Waterman  v.  Smith,  13  Gal.  419. 
See  post,  §  377,  note  76. 


CHAPTER  XIX. 

VOLUNI'ARY  TRANSFER  INTER  VIVOS. 

I.  Classes  of  Conveyances. 

I  427.  Conveyances  at  common  law. 

428.  Conveyances  operating  under  the   Statute   of  Uses. 

429.  Conveyances  employed  in  the  United  States. 

430.  Quitclaim  deeds. 

431.  Surrender. 

432.  Conveyances  failing  to  take  effect  in  the  manner  intended. 

II.  FoBM  AND  Essentials  of  a  Conveyance. 

433.  General  considerations. 

434.  Designation  of  parties. 

435.  Words  of  conveyance. 

436.  Exceptions  and  reservations. 

437.  Rules  of  construction. 

438.  Consideration. 

439.  Reality  of  consent. 

440.  Effect  of  alterations. 

III.  Description  of  the  Land. 

§  441.  General  considerations. 

442.  Description  by  government  survey. 

443.  Reference  to  plat. 

444.  Monuments,  courses  and  distances. 

445.  Boundaries  on  water. 

446.  Boundaries  on  ways. 

447.  Sufficiency  of  description. 

448.  Appurtenances. 

IV.  Covenants  ior  Title. 

§  449.  General   considerations. 

450.  Covenant  for  seisin. 

451.  Covenant  for  right  to  convey. 

452.  Covenant  against  incumbrances. 

453.  Covenants  for  quiet  enjoyment  and  of  warranty. 

454.  Covenant  for  further  assurance. 

455.  The  measure  of  damages. 

456.  Covenants  running  with  the  land. 

V.  ExEcuTio.N  OF  The  Conveyance. 
§  457.     Signing. 

(1565) 

2  R.  P.— 24  ' 


1566  Real  Fkoperty.  [§  427 

458.  Sealing. 

459.  Witnesses. 

460.  Acknowledgment. 

461.  Delivery. 

462.  Conditional  delivery. 

463.  Acceptance. 

464.  Execution  by  agent. 

465.  Effect  of  execution — Return  or  cancellation. 

§  427.     Conveyances    at    common    law — Feoffment. 

The  transfer  of  land  by  ''livery  of  seisin,"  which  has 
already  been  briefly  described/  was  ordinarily  known 
as  a  "feoffment,"  and  the  terms  were,  it  seems,  used 
interchangeably.-  The  person  making  the  transfer  was 
known  as  the  "feoffor,"  and  the  transferee  as  the 
feoffee."  The  livery  was  ordinarily  accompanied  by 
a  "charter  of  feoffment,"  declaring  the  limitations  of 
the  estate  or  estates  vested  in  the  feoffee,  but  the  livery 
of  seisin  was  alone  necessary  until  the  passage  of  the 
Statute  of  Frauds,  which  in  effect  declared  that  all 
estates  created  by  livery  of  seisin  only,  or  by  parol, 
and  not  put  in  writing  and  signed  by  the  parties  so 
making  and  creating  the  same,  or  their  agents,  should 
be  estates  at  will  merely.^  This  mode  of  transfer  was 
available  only  in  the  case  of  estates  accompanied  by  sei- 
sin, that  is,  estates  of  freehold  in  possession,  and  was 
not  available  for  the  transfer  of  rights  in  incorporeal 
things.* 

Since  a  feoffment  operated  on  the  possession  alone, 
any  person  having  possession  of  land,  even  though,  as 
in  the  case  of  a  tenant  for  years,  not  legally  seised, 
could,  by  feoffment  to  a  stranger,  create  in  the  latter 
an  estate  of  any  quantum;  and  so  one  having  seisin 
as  of  an  estate  for  life  could  create  in  another  a  greater 
estate.    Since  the  effect  of  such  a  transfer  of  seisin  was 

1.  Ante,   §  14.  Challis,  Real   Prop.  370.    ; 

2.  Challis,  Real  Prop.  (.3rd  Ed.)  4.     Sheppard's  Touchstone,  228; 
362.  Williams,      Real      Prop.      31;       2 

3.  29  Car.  II.  c.  3,  §  1.     See  Co.  Blackst.    Comm.    314.     See    ante, 
Litt.  48;    2   Blackst.   Comm.    313;  §    16. 


<^  427]  Transfer  Inter  Vivos.  1567 

to  operate  wrongfully  upon  the  interest  of  tlie  owner 
of  the  reversion  or  remainder,  it  was  termed  a  "tort- 
ious ' '  conveyance.^ 

Transfer  by  feoffment  is  now  in  effect  obsolete, 
though  occasionally  the  theory  of  such  a  transfer  may 
be  resorted  to  for  the  purpose  of  upholding  a  con- 
veyance otherwise  invalid  or  ineffective  to  carry  out 
the  evident  purpose  of  the  parties.*'  In  many  states 
the  statutes  expressly  dispense  with  the  necessity  of 
livery  of  seisin  for  the  conveyance  of  real  property. ''^ 

Fines    and    recoveries.      Fines   and    recoveries 

were  collusive  actions  brought  for  the  purpose  of  ef- 
fecting a  transfer  of  interests  in  land  not  otherwise 
transferable.  They  have  been  abolished  by  statute  in 
England,  and  in  no  state  of  this  country  are  they,  it  is 
believed,  in  practical  use.^  They  were  for  many  years 
utilized  for  the  purpose  of  barring  estates  tail,  and 
thereby .  evading  the  statute  De  Bonis  Conditionalibus,^ 
but  they  were  appropriate  and  necessary  for  other 
purposes,  the  most  important  of  which  was  the  transfer  ■ 
of  land  by  a  married  woman,  she  not  being  competent 
to  make  an  ordinary  conveyance. 

Grant.    A  grant  was,  at  common  law,  made  use 

of  for  the  transfer  of  such  interests  in  land  as,  from 
their  nature,  were  incapable  of  transfer  by  feoffment, 
that  is,  of  which  there  tonld  be  no  seisin,  including  all 
rights  in  another's  land,  or  other  incorporeal  things 
real,  and  also  estates  in  remainder  or  reversion  upon  a 
free  hold  estate.^^    A  grant  always,  involved  a  "deed," 

5.  Co.  Litt.  §  611,  and  Butler's       St.  460. 

note;  Co.  Litt.  251a,  3.30b;  Challis,  7.     1  Stimson's  Am.  St.  Law,  § 

Real  Prop.  371.  1470. 

6.  Witham  v.  Brooner,  63  111.  8.  These  proceedings  are  ex- 
.■'.44;  Ware  v.  Richardson,  '.',  Md.  plained  in  2  Blackst.  Comm.  348. 
505;   Rogers  v.  Sisters  of  Charity  9.     Ante,  §  28. 

97    Md.    556;    Hunt    V.    Hunt,    14  10.     Co.   Litt.    9b,   49a,   172a;    2 

Pick.    (Mass.)    374;   Carr  v.  Rich-  Blackst.    Comm.    317;    2    Sanders, 

ardson,   157    Mass.    576,    32    N.    E.  Uses     &     Trusts     (5th     Ed.)     29. 

958;    Eckman  v.   Eckman,   68    Pa.  See  ante,   §    16. 


1568  Real  Propeety.  [^  427 

that  is,  a  writing  under  seal,  since  no  other  form  of 
writing  had,  at  common  law,  any  legal  effect.  ^^ 

At  conmion  law  the  lord's  right  to  the  services  of 
the  tenant,  the  ''seignory,"  could  not  be  transferred  to 
another  without  "attornment"  by  the  tenant,  that  is, 
acceptance  of  the  new  lord.  The  same  principle  applied 
in  the  case  of  the  grant  of  a  reversion,  it  not  being 
valid  unless  the  tenant  attorned  to  the  grantee.^-  The 
necessity  of  attornment  was,  as  before  stated,  abolished 
in  England  by  4  Anno,  c.  16  §  9,  and  is  no  longer  recog- 
nized in  this  country.  ^^ 

Lease.     A  lease  is  a  conveyance  of  an  estate 

for  life,  for  years,  or  at  will,  by  one  who  has  a  greater 
estate.  At  common  law,  if  the  estate  conveyed  was  for 
life,  livery  of  seisin  was  required,^^  but  if  for  years 
or  at  will  merely,  an  oral  lease  without  livery  was 
sufficient. ^^  By  the  Statute  of  Frauds,  a  writing  was 
rendered  necessary  for  the  creation  of  an  estate  for 
years,  excepting  certain  leases  not  exceeding  three 
years  from  the  making  thereof. ^"^  But,  even  at  common 
law,  a  lease  for  years  of  an  incorporeal  thing  was  in- 
valid unless  in  writing  and  under  seal,  since  such  a 
thing  lay  in  grant  for  all  purposes,  and  no  other  method 
of  transfer  thereof  was  recognized.^^  The  form  and  re 
quisites  of  a  lease  have  been  previously  considered,  in 
connection  with  the  subject  of  estates  for  years. ^'^^ 

Release.  A  conveyance  by  release  is  a  con- 
veyance of  an  estate  or  interest  in  land  to  one  who  has 
possession  of  the  land  or  a  vested  estate  therein.     It 

11.  Co.   Litt.   172a;    Slieppard's  2   Piatt,  Leases,   1. 
Touchstone,  229;  1  Hayes,  Convey-  16.     29    Car.    II.    c.    3,    §"§    1,    2 
ancing   (5th  Ed.)    25;    2   Sanders,  17.     Co.     Litt.     85a;     Tottel    v 
Uses  &  Trusts   (5th  Ed.)   41.  Howell,  Noy,  54;   14  Vin.  Abr.  tit 

12.  Litt  .§§    551,  567,  568;    Co.  "Grant"  (Ga.);  Sheppard's  Touch 
Litt.  309a,  Butler's  note.  stone,   26T;    Somerset  v.   Fogwell 

13.  See  ante,  §§  53   (a).  5   Barn.   &   C.   875;    Bird   v.   Hig 

14.  2   Blackst.  Comm.   318.  ginson,  2  Adol.  &  E.  696. 

15.  Sheppard's  Touchstone,  267;  17a.     Ante,  i  42. 


§  427]  Tbansfer  Intee  Vivos.  1569 

was  utilized,  at.  common  law,  in  cases  in  which  the  per- 
son to  whom  the  conveyance  was  to  be  made  was 
already  in  jDossession,  so  that  no  livery  of  seisin  could 
be  given  unless  he  should  first  quit  possession,  which 
w^ould  have  involved  an  idle  multiplication  of  cere- 
monies.^^ A  release  may  be  made  to  the  tenant  of  a 
life  estate  by  the  owner  of  the  reversion  or  remainder 
thereon,  whether  the  life  estate  be  one  created  by  act 
of  the  parties, ^^  or  one  created  by  act  of  the  law,  such  as 
as  estate  of  dower  or  curtesy,^*^  the  life  estate  being  en- 
larged by  the  release  to  a  fee  simple  or  fee  tail.  A 
release  may  also  be  made  by  the  owner  of  the  reversion 
to  the  tenant  of  an  estate  for  years  or  at  will,-^  but 
not  to  a  tenant  at  sufferance.--  Eeleases  thus  made  by 
a  reversioner  or  remainderman  to  the  particular  tenants 
are  said  by  the  common  law  writers  to  enure  by  way 
of  enlargement  of  the  estate  {enlarger  V estate). ^^  A 
mere  interesse  termini,  that  is,  the  right  of  a  lessee  who 
has  not  yet  entered  under  his  lease,  does  not  entitle  him 
to  take  a  release  by  way  of  enlargement,-^  it  being 
necessaiy  that  the  lessee  be  in  actual  possession,  or  in 
legal  possession  by  force  of  the  Statute  of  Uses.^^ 
A  release,  in  order  to  enlarge  the  particular  estate  to 
one  of  inheritance,  must,  at  common  law,  contain  the 
word  "heirs,"  as  in  the  case  of  a  conveyance  between 
strangers.^" 

A  release  mav  also  be  made,  not  by  way  of  en- 
largement of  an  estate,  but  by  way  of  passing  an  estate 
{mitter  Vest  ate),  as  when  one  joint  tenant  or  coparcener 
releases  his  estate  to  his  cotenant.  In  this  case,  words 
of  inheritance  have  never  been  required,  since  the  per- 
son to  whom  the  release  is  made  is  regarded  as  already 
seised   of   the   freehold,    and   the    release    is    merely   a 

18.  2  Pollock  &  Maitland,  Hist.  22.     Co.  Litt.  270b. 

Eng.  Law.  90.  23.  Litt.    §    465;    Challis,    Real 

19.  Co.    Litt.    273b.  Prop.  409. 

20.  2    Sanders,    Uses  &   Trusts          24.  Litt.  §  459;   Co.  Litt.  270a. 
(5th  Ed.)  73.  25.  See  ante,  §  100. 

21.  Litt  §§   460,  46.-..  20.  Litt.  §  465;    Co.  Litt.  273b. 


1570  Eeal  Pkopekty.  [§  427 

discharge  from  the  claim  of  another  seised  under  the 
same  title.-'  A  release  was  never  regarded  as  suf- 
ficient to  pass  the  interest  of  one  tenant  in  common  to 
another,  since  they  are  regarded  as  having  distinct 
freeholds.^* 

A  third  mode  of  operation  of  a  release  is  by  way 
of  "extinguishment"  of  an  interest  in  another's  land, 
as  when  the  owner  of  a  rent,  a  right  of  profit,  or  an 
easement,  releases  his  rights  to  the  owner  of  the 
land  subject  thereto.-^  The  only  other  modes  of  opera- 
tion of  release  at  common  law  occurred  in  the  case  of 
a  release,  by  one  disseised,  of  all  his  right  or  claim  in 
favor  of  the  disseisor,  or  of  his  heir  or  feoffee,  this 
being  known  as  a  "release  by  way  of  passing  the 
right"  {mitter  le  droit). ^^ 

A  release  must,  at  common  law,  be  by  deed,  that 
is,  by  writing  under  seal.^^ 

Strictly  speaking,  at  the  present  day,  as  at  com- 
mon law,  a  release  cannot  be  made  to  one  having 
neither  possession  of  the  land  nor  a  vested  estate  there- 
in,^^  but  a  conveyance  purporting  to  be  a  release  will 
almost  invariably  be  upheld  as  a  conveyance  by  bar- 
gain and  sale  or  grant.^^ 

Assignment  and  surrender.    The  term  ' '  assign- 


ment" in  connection  with  the  law  of  land,  is  commonly 

applied  to  the  transfer  of  a  chattel  interest.^^    At  com* 

27.  Co.  Litt.  273b,  and  Butler's  M.    (Miss.)    130. 

note.  33.     Baker  v.  Whiting,  3  Sumn. 

28.  4  Cruise,  Dig.  tit.  32,  c  6,  §  475,    Fed.    Cas.    No.    787;    Conn's 
25;   2  Preston,  Abstracts,  77.  Heirs  v.  Manifee,  2  A.  K.  Marsh 

29.  Litt.  §  480;   Co.  Litt.  280a.  (Ky.)  396,  12  Am.  Dec.  417;   Pray 

30.  Litt.  §   466;    4  Cruise,  Dig.  v.  Pierce,  7  Mass.  381,  5  Am.  Dec. 
tit.  32,  c.  6,   §  26.  59;    Havens    v.    Sea    Shore    Land 

31.  Co.  Litt.  264b;   2  PoUock  &  Co.,  47  N.  J.  Eq.  365,  20  Atl.  497; 
Maitland,    Hist.    Eng.    Law,    91.  Lynch  v.  Livingston,  6  N.  Y.  422; 

32.     Runyon  v.  Smith,  (C.  C.)  Hall's    Lessee    v.    Ashby,    9    Ohio 

18  Fed.  579;    Branham  v.  City  of  96,  34  Am.  Dec.  424.     See  Ely  v. 

San  Jose,  24  Cal.  585;   Warren  v.  Stannard,  44  Conn.  528. 

Childs,    11    Ma^.    222.      Compare  34.     2    Blackst.    Comm.    326;    4 

Sessions  v.  Reynolds,  7  Smedes  &  Cruise,  Dig.  tit.  32,  c.  6  §  15. 


§  427]  Teansfee  Inter  Vivos.  1571 

moil  law,  an  assignment  of  such  an  interest  in  land,  as 
distinguished  from  an  interest  in  an  incorporeal  thing, 
might  be  made  without  writing,"''  but  by  the  Statute 
of  Frauds^^'  a  writing  signed  by  the  assignor,  or  by  his 
agent  authorized  in  writing,  is  required.  The  question 
of  the  right  of  a  tenant  to  make  an  assignment  of 
his  leasehold  interest,  and  that  of  when  a  transfer  by 
him  constitutes  an  assigTiment  and  when  a  sublease, 
have  been  previously  considered.'^' 

That  class  of  conveyance  known  as  surrender,  in- 
volving the  transfer  of  a  particular  estate  to  the  re- 
versioner or  remainderman,  though  recognized  at 
common  law,  is  frequently  the  subject  of  adjudication  at 
the  present  day,  and  will  be  most  conveniently  dis- 
cussed in  a  subsequent  section  apart  from  the  other 
common  law  conveyances.^* 

Exchange.  An  excliange  is  a  mutual  convey- 
ance of  equal. interests  in  distinct  pieces  of  land.  At 
common  law,  if  both  pieces  of  land  lay  in  the  same 
county,  the  exchange  might  be  oral,  while,  if  situated 
in  different  counties,  a  deed  was  required.'*'^  But,  by 
the  Statute  of  Frauds,  a  writing  is  necessary  on  the 
exchange  of  freeholds  or  of  terms  for  years  other  than 
certain  terms  for  three  years  or  less.^^^  No  livery  of 
seisin  was  necessary  at  common  law,  but  each  party 
to  the  exchange  was  required  to  enter  while  both  were 
alive.^^ 

A  common-law  exchange  could  not  be  effected  unless 
the  estates  of  the  respective  parties  were  of  the  same 
legal  quantum; — that  is,  an  estate  in  fee  simple  could  be 

35.-  4  Cruise,  Dig.  tit.  32,  c.  6,  39.     Litt.    §§    62,    63;    Co.    Litt. 

§    20.  .50a. 

36.  29  Car.  2,  c.  3,  S  3.  As  to  40.  29  Car.  II.  c.  3,  §§  1-3; 
the  various  state  statutes  bear-  Co.  Litt.  50a,  Butler's  note.  See 
ing  on  the  form  of  an  assignment.  Dowling  v.  McKenney,  124  Mass. 
see  1  Tiffany,  Landlord  &  Ten.  §  478;  Cass  v.  Thompson,  1  N.  H. 
154.  65,  8  Am.  Dec.  36;    Rice  v.   Peet, 

37.  Ante,   §§   54,   55.  15  Johns.    (N.  Y.)    503. 

38.  Post,    §    431.  41.     Co.   Litt.    50b. 


1572  Real  Property.  [§  428 

exchanged  only  for  an  estate  of  the  same  character, 
an  estate  for  twenty  years  only  for  an  estate  for 
twenty  years,  and  so  on.^^  xiie  word  ''exchange"  was 
required  to  be  used,  and  no  other  expression  would 
supply  its  place.*^  A  common-law  exchange,  answering 
to  the  foregoing  requirements,  probably  never  occurs 
in  modern  practice. 

§  428.  Conveyances  operating  under  the  Statute  of 
Uses.  The  Statute  of  Uses,  as  has  been  previously  ex- 
])lained,  gave  rise  to  two  entirely  new  methods  of  trans- 
ferring legal  estates  in  land,  to-wit,  the  conveyance  by 
''bargain  and  sale,"  and  that  by  "covenant  to  stand 
seised;"  the  former  being  based  upon  a  use  raised  in 
the  intended  transferee  by  the  payment  of  a  pecuniary 
consideration,  usually  merely  nominal,  and  the  latter 
being  based  on  the  declaration  of  a  use  in  favor  of  one 
related  by  blood  or  marriage,  the  statute  executing  the 
use  in  both  cases.^*  One  effect  of  this  statute  was  to 
enable  the  owner  of  land,  by  a  mere  contract  of  sale 
and  the  payment  to  him  of  a  pecuniary  consideration, 
to  vest  the  legal  title  in  another,  without  any  writing  or 
ceremony  whatever,  and  with  absolute  secrecy,  and 
to  prevent  such  secret  conveyances  by  bargain  and  sale 
a  statute  was  passed  in  the  same  year,  called  the 
"Statute  of  Enrollments,"^^  requiring  all  bargains  and 
sales  of  freehold  interests,  in  order  to  be  valid,  to  be 
made  by  deed,  that  is,  writing  under  seal,  enrolled 
in  couii;  or  with  certain  officials.  The  statute  did  not 
apply    to    conveyances    by    covenant    to    stand    seised. 

42.  Litt.    §§    64,    65;    Co.    Litt.  36;    Dean    v.    Shelly,    57    Pa.    St. 
51a;  2  Blackst.  Comm.  323:  Anony-  426,    98    Am.    Dec.    235;    Windsor 
mous,    3    Salk.    157;    Windsor    v.  v.  Collinson,  32  Or.  297. 
Collinson,    32    Ore.    297;    Long    v.  44.     See  ante,  §  100. 

Fuller,  21  Wis.  121.  45.     27  Hen.  VIIL  c.  16   (A.  D. 

43.  Co.    Litt.    51b;     2    Blackst.  1535).      See    2    Sanders,    Uses    & 
Comm.  323;   Eton  College  v.  Win-  Trusts  (5th  Ed.)  64;  Digby,  Hist. 
Chester,     3     Wils.     468;     Cass    v.  Law  Real  Prop.    (4th  Ed.)    364. 
Thompson,  1  N.  H.  65,  8  Am.  Dec. 


§  428]  Transfer  Inter  Vivos.  1573 

This  statute  is  probably  not  in  force  in  any  state.^^ 
Clandestine  conveyances  by  bargain  and  sale  being  thus 
prevented  by  the  Statute  of  Enrollments,  conveyancers, 
soon  after  the  statute,  devised  the  conveyance  by 
'* lease  and  release,"  taldng  advantage  of  the  fact  that 
the  statute  required  the  enrollment  of  bargains  and 
sales  of  ' 'freehold"  interests  only.  This  conveyance, 
as  before  explained,  consisted  of  a  bargain  and  sale  of 
a  leasehold  interest  to  the  intended  grantee,  which 
vested  him  with  the  legal  possession,  and  this  was 
followed  by  a  deed  of  release  of  the  reversion  remaining 
in  the  former  owner.^" 

A  conveyance  by  covenant  to  stand  seised  is 
usually  said  to  be  based  upon  the  consideration  of 
blood  or  marriage.'*''''^  But  in  such  case  the  word  con- 
sideration is  used,  not  in  its  technical  sense  of  the 
equivalent  for  a  promise,  but  in  the  sense  of  motive  or 
inducement  for  the  agreement  to  stand  seised.  "The 
exception  in  favor  of  those  related  by  blood  or  marriage 
had  in  truth  nothing  to  do  with  the  doctrine  of  con- 
sideration and  was   established  in  the   interest  of  the 

46.  See  Givan  v.  Tout,  7  Blackf.  Gray,  Peripetuities,  §  57.  The 
(Ind.)  210;  Marshall  v.  Fisk,  6  same  view  is  adopted  in  Jackson 
Mass.  24,  4  Am.  Dec.  76;  Chandler  v.  Dunsbaugh,  1  Johns.  Gas.  92.  It 
V.  Chandler,  55  Cal.  267;  Givan  v.  is  asserted  in  support  of  this 
Doe,  7  Blackf.  (Ind.)  210;  opinion  view  that  previous  to  the  stat- 
of  Justices,  3  Binn.  (Pa.)  595.  ute  of  enrollments  a  covenant  to 
Compare  Underwood  v.  Campbell,  stand  seised  could  be  supported 
14    N.    H.    393.  by  a  pecuniary  consideration,  and 

47.  1  Hayes,  Conveyancing,  that  after  that  statute  the  con- 
(5th  Ed.)  76.    See  ante.  §  100.  trary  view  was  adopted  merely  to 

47a.     That    a    consideration    of  prevent    the    statute    being    nulli- 

blood    or    marriage    is    necessary,  fied     by     regarding     conveyances 

see    post,    this    section,    notes    49-  which  were  in  their  nature  deeds 

51,  63.    In  Massachusetts  the  view  of  bargain  and  sale  as  covenants 

has  been  asserted  that  a  covenant  to    stand    seised.      But    covenants 

to  stand  seised  may  be  supported  to    stand    seised    apipear    not    to 

by     a     pecuniary     consideration.  have  been  recognized   previous  to 

Trafton  v.  Hawes,  102  Mass.  533,  the  Statute  of  Enrollments.     Pro- 

3  Am.  Rep.  494;  Ricker  v.  Brown,  fessor  Ames  says  that  Sharington 

183  Mass.  424,  67  N.  E.  3.53.     See  v.     Strotton,     Plowd.     298     (anno 


].574  Real  Property.  [§  428 

great  English  families.  "^^  What  degree  of  relationship 
is  sufficient  to  support  a  conveyance  of  this  character 
appears  to  have  been  but  little  discussed,  and  no 
restriction  in  this  regard  has  been  asserted,  a  covenant 
to  stand  seised  in  favor  of  a  nephew  or  cousin  being- 
regarded  as  valid,^^  as  is  no  doubt  one  in  favor  of  a 
grandchild.^*^  As  regards  connection  by  marriage,  it 
would  seem  to  be  necessary  that  the  beneficiary  be  the 
wife,  or  perhaps  the  husband,  of  one  wdio  is  within  the 
necessary  degree  of  blood  relationship,  so  that  such 
a  conveyance  by  A  to  his  daughter-in-law  or  to  his 
cousin's  wife  would  be  valid,  but  not  such  a  conveyance 
by  one  of  the  latter  to  A.^^  This  is  by  reason  of  the 
fact  that  this  form  of  conveyance  was  upheld  merely 
to  enable  one  to  perpetuate  and  make  provision  for  his 
or  her  own  family,  and  while  a  conveyance  to  the  wife 
of  one's  relative  might  conduce  to  this  end,  a  con- 
veyance to  a  relative  of  one's  wife  could  not  so  operate. 
The  valuable  consideration  necessary  to  support  a 
conveyance  by  bargain  and  sale  is  either  money  or 
money's  worth.^-  It  involves  ordinarily  the  idea  of 
a  benefit  to  the  grantor,  but  presumably  a  mere  detri- 
ment to  the  grantee  would  be  sufficient  for  this  pur- 
pose as  it  is  to  support  an  executory  contract.  A 
mere  promise  on  the  part  of  the  grantee,  as  to  pay 
money^^  or  to  support  the  grantor^*  is  sufficient,  and  a 

1565)    "was  the  first  case  of  this  covenant  to  stand  seised  in  favor 

kind."     See  21  Harv.  Law  Rev.  at  of  a   son   in   law   or   daughter    in 

p.  269,  Lectures  on  Legal  History.  law    is    valid    see    also,    Gale    v. 

p.  241.  Coburn,    18    Pick.     (Mass.)     397; 

48.  Prof.  J.  B.  Ames  in  21  Bell  v.  Scammon.  15  N.  H.  381, 
Harv.  Law  Rev,  at  p.  269,  Lee-  41  Am.  Dec.  706;  Contra,  Corwin 
tures  on  Legal  History,  p.  241.  v.    Corwin,    9    Barb.    219    6    N.    Y. 

49.  Sugden's    Gilbert    on   Uses,  342. 

93;  Sheppard's  Touchstone,  511.  52.     2     Preston,     Conveyancing, 

50.  See  Hansom  v.  Buckner,  4  373;  Jackson  v.  Pike,  9  Cow.  (N. 
Dana  (Ky.)  251;  Stovall  v.  Bar-  Y-.)  69;  Redmond  v.  Cass,  226  111. 
nett,  4  Litt.    (Ky.)   207.  120. 

51.  See  the  full  discussion  by  53.  2  Sanders,  Uses  &  Trusts 
White,  J.,  in  Thompson  v.  Thomp-  (5th  Ed.)  56. 

son,    17    Ohio    St.    649.      That    a 


§  429]  Tbansfer  Inter  Vivos.  1575 

mere  condition  subsequent  in  the  conveyance,  calling 
for  the  performance  of  some  act  by  the  grantee,  has 
apparently  been  so  regarded,^^  as  has  a  reservation 
of  a  rent,  of  either  substantial  or  nominal  value.^^  Mar- 
riage is  also  a  valuable  consideration,  in  the  sense  that 
a  bargain  and  sale  to  one  in  consideration  of  his 
intended  marriage  with  one  of  the  grantor's  family  is 
valid.^^ 

§  429.  Conveyances  employed  in  the  United  States. 
In  most  of  the  states  of  this  country  there  are  statutory 
provisions  authorizing  the  transfer  of  land  by  simple 
forms  of  conveyance,^*  which,  in  their  operation,  much 
resemble  the  common-law  "grant,"  except  that  they 
are  not  confined  to  incorporeal  things.  The  same  pur- 
pose of  simplification  of  conveyancing  has  in  England 
been  attained  by  a  statute  providing  that  all  corporeal 
tenements  and  hereditaments  shall,  as  regards  the  con- 
veyance of  the  immediate  freehold  thereof,  be  deemed 
to  lie  in  grant,  as  well  as  in  livery.^^  Conveyances  b}' 
way  of  bargain  and  sale  have,  however,  been  in  fre- 
quent use  in  this  country,*"^  and,  even  in  states  where 
there  are  statutory  provisions  of  the  character  referred 
to,  the  words  "bargain  and  sell"  are  ordinarily  used 
in  a  conveyance.  In  such  states,  in  fact,  it  is  difficult, 
and  for  most,  if  not  all,  purposes,  unimportant,  to  say 

54.  Young  V.  Ringo,  1  T.  B.  the  thorough  discussion  of  the 
Men.  (Ky.)  30;  Spalding  v.  Hal-  local  law  of  the  different  states 
lenbeck,   30  Barb.    (N.   Y.)    292.  in  this  regard  by  Professor  John 

55.  Stonley  y.  Bracebridge,  1  R.  Rood,  in  4  Mich.  Law  Rev.  109. 
Leon.  6;  Exum  v.  Canty,  34  Miss.  59.  "Real-Property  Act,"  St.  8 
533;  Castleton  v.  Langdon,  19  Vt.  &  9  Vict.  c.  106,  §  2  (A.  D.  1845), 
210.  60.     See  Pascault  V.   Cochran  (C. 

56.  Barker  v.  Keate,  2  Mod.  C.)  34  Fed.  358;  Givan  v.  Tout,  7 
253.  Black'f.     (Ind.)     210;     Nelson     v. 

57.  Sugden's  Gilbert  on  Uses,  Davis,  35  Ind.  474;  Chiles  v.  Con- 
91;  Arnold  v.  Estis,  92  N.  C.  162;  'ey's  Heirs,  2  Dana  (Ky.)  21; 
Thompson  v.  Thompson,  17  Ohio  Sanders  v.  Hartzog,  6  Rich.  (S.  C.) 
St.    649.  '*'^^;    Holland  v.    Rogers,   33   Ark. 

r.8.  1  Stimson's  Am.  St.  Law,  S  ^51;  Stewart  v.  Stewart.  171  Ala. 
1480-H82.      And    see    particularly      485,  54  So.  604;   Bronston's  Adm'r 


1576  Reax,  Property.  [§  430 

whether  a  particular  conveyances  operates  by  force  of 
the  Statute  of  Uses  or  under  the  local  statute.  In 
order,  however,  that  a  conveyance  be  regarded  as  taking 
effect  by  way  of  bargain  and  sale,  it  must,  as  was  be- 
fore stated,  be  supported  by  a  valuable  consideration, 
either  actual  or  expressed.^^ 

Conveyances  by  way  of  covenant  to  stand  seised 
have  been  recognized  in  this  country ,'^2  but,  since  a  con- 
sideration of  blood  or  marriage  is  necessary,^^  there  is 
but  little  opportunity  for  their  employment.  Even  when 
the  proper  consideration  does  exist,  a  conveyance  in 
form  under  the  local  statute,  or  by  way  of  bargain  and 
sale,  with  a  recital  of  a  pecuniary  consideration,  would 
usually   be    employed. 

Conveyances  by  lease  and  release  have  never  been 
employed  to  any  extent  in  this  country,  since  the 
Statute  of  Enrollments,  which  constituted  the  reason 
for  their  use  in  England,  is  not  in  force  here. 

§  430.  Quitclaim  deeds.  There  is,  in  this  country,  a 
well-recognized  class   of  conveyances,  known  as   **quit- 

V.  Bronston's  Heirs,   141  Ky.  639,  (N.  Y.)    85;    Ward  v.   Wooten.   75 

133   S.   W.   584.  N.   C.   413;    Sprague  v.   Woods,    4 

61.  Corwin  v.  Corwin,  6  N.  Y.  Watts  &  S.  (Pa.)  192;  Fisher  v. 
342,  57  Am.  Dec.  453;  Wood  v.  Strickler,  10  Pa.  St.  348,  51  Am. 
Chapin,  13  N.  Y.  509,  67  Am.  Dec.  Dec.  488;  Watson  v.  Watson,  24 
62;  Lambert  v.  Smith,  9  Ore.  185;  S.  C.  228.  58  Am.  Rep.  247;  Barry 
Den  d.  Jackson  v.  Hampton,  30  v.  Shelby,  4  Hayw.  (Tenn.)  229. 
N.  C.  457;  Gault  v.  Hall,  26  Me.  63.  Rollins  v.  Riley,  44  N.  H. 
561;  Boardman  v.  Dean,  .^.4  Pa.  9;  Jackson  v.  Caldwell,  1  Cow.  (N. 
St.   252.  Y.)    622;    Gault    v.    Hall,    26    Me. 

That  the  recital  of  the  consider-  561;    Thompson  v.   Thompson,   17 

ations   is  conclusive  for  the  pur-  Ohio  St.  649;  Doe  d.  Cobb  v.  Hines, 

pose  of  supiporting  the  conveyance  44   N.   C.    343.    59    Am.    Dec.    559; 

as  a  bargain  and  sale,  see  post,  §  Eckman    v.    Eckman,    68    Pa.    St. 

438,  note  75.  460;  2  Sanders,  Uses  &  Trusts  5th 

62.  Murray  v.  Kerney,  115  Md.  Ed.  98;  Contra  in  Massachusetts. 
514,  38  L.  R.  A.  (N.  S.)  937,  See  ante,  this  section,  note  47a. 
81  Atl.  6;  Merrill  v.  Publishers'  64.  See,  as  to  the  early  use  of 
Paper  Co.,  77  N.  H.  285,  90  Atl.  the  word  "quitclaim,"  2  Pollock 
786;    .Tackson  v.  Swart,  20  Johns.  &  Maitland,  Hist.  Eng.  Law.  91. 


§  430]  Transfer  Inter  Vivos.  1577 

claim  deeds,"  which  are  to  some  extent  a  development 
of  the  common-law  release,  and  which  have  acquired 
their  name  from  one  of  the  words  ordinaril}^  used  in 
the  latter  instrument.^^  Such  a  conveyance  purports 
merely  to  convey  whatever  title  to  the  particular  land 
the  grantor  may  have,  and  its  use  excludes  any  implica- 
tion that  he  has  a  good  title,  or  any  title  at  all/'' 
Accordingly,  as  a  general  rule,  it  contains  no  covenants 
for  title,  and  its  employment  is,  in  some  states,  re- 
garded as  in  itself  notice  to  the  purchaser  of  possible 
defects  in  the  title,  so  that  he  cannot  claim  to  occupy 
the  position  of  a  bona  fide  purchaser.*'^  Such  a  con- 
veyance, moreover,  is  not  regarded  as  transferring  an 
after  acquired  title  on  the  principle  of  estoppel/''''  A 
quitclaim  deed,  how^ever,  is  sufficient  in  itself  to  pass 
the  grantor's  existing  title  to  the  same  extent  as  a 
deed  of  grant  or  bargain  and  sale,^^  and  its  validity 
is  not,  like  the  common-law  release,  dependent  upon  the 
existence  of  an  estate  or  interest  in  the  grantee/^  The 
question  w^hether  a  conveyance  is  a  mere  quitclaim  is 
determined  by  a  construction  of  the  instrument  as  a 
whole,    with    reference    to     the     circumstances     under 

65.  City  &  County  of  San  Fran-  Dutton,  79  111.  466;  Callahan  v. 
Cisco  V.  Lawton,  18  Cal.  465,  79  Davis,  90  Mo.  78,  2  S.  W,  216; 
Am.  Dec.  187;  Kerr  v.  Freeman,  Landes  v.  Brant,  10  How.  (U.  S.) 
33  Miss.  292;  Emmel  v.  Headlee  372,  13  L.  Ed.  460;  French's 
(Mo.)  7  S.  W.  22;  Coe  v.  Persons  Lessee  v.  Spencer,  21  How.  (U.  S.) 
Unknown.  43  Me.  432;  Garrett  v.  228,  16  L.  Ed.  97. 
Christopher,  74  Tex.  4.'"j3,  15  Am.  68.  Bradbury  v.  Davis,  5  Colo. 
St.  Rep.  850,  12  S.  W.  67.  265;  Kyle  v.  Kavanaugh,  103  Mass. 

66.  See  j)OHt.  S  5r.7(m).  :;56;  Grant  v.  Bennett,  96  111.  513; 

67.  Post,  §   545(b).  Wilson   v.   Albert,    89    Mo.    537,   1 
Since     a     government     patent,      S.  W.  20fi;  Mclnerney  v.  Beck,  10 

when  issued,  relates  back  to  the  Wash.  515,  39  Pac.  130.  So  by 
date  of  the  entry,  it  enures  to  the  statute  in  some  states.  See  Hoff- 
benefit  of  one  to  whom  the  man  v.  Harrington,  28  Mich.  90; 
patentee  has,  since  the  entry,  con-  Kerr  v.  Freeman,  33  Miss.  292. 
veyed  the  land,  even  though  by  a  69.  Spaulding  v.  Bradley.  79 
"quitclaim"  purporting  to  convey  Cal.  449,  22  Pan.  47;  Kerr  v.  Free- 
merely  such  title  as  he  has.  Crane  man,  33  Miss.  292. 
v.   Salmon,   n    Cal.   63;    Welch    v. 


1578  Real  Property.  [§  431 

which  it  was  given.'*'  It  may  be  said,  however,  that 
the  cases  do  not  appear  to  be  entirely  consistent  as  to 
the  criteria  controlling  in  the  matter.'^ 

§  431.  Surrender.  That  character  of  conveyance 
known  as  ''surrender"  was  fully  recognized  at  common 
law  and  might  accordingly  have  been  properly  dis- 
cussed in  the  previous  section  dealing  with  conveyances 
at  common  law.  In  view  however  of  the  practical  im- 
portance of  the  law  of  surrender  it  has  appeared  to 
be  expedient  to  devote  a  separate  section  thereto. 

"Surrender"  has  been  defined  as  a  yielding  up 
of  an  estate  for  life  or  years  to  him  that  hath  an  im- 
mediate estate  in  reversion  or  remainder,  wherein  the 
estate  for  life  or  years  may  drowTi  by  mutual  agree- 
ment between  them."'^^  Unfortunately,  this  technical 
meaning  of  the  word,  as  referring  to  the  transfer  of 
an  estate,  has  been  somew^hat  obscured  by  its  frequent 
use  in  an  untechnical  sense,  as  referring  to  the  re- 
linquishment or  yielding  up,  not  of  an  estate,  but  of  the 
physical  possession  of  the  premises,  as  when  the  lessee 
covenants  to  "surrender"  the  premises  in  good  con- 
dition at  the  end  of  the  term,  and  the  courts  frequently 
fail  clearly  to  distinguish  between  such  a  surrender 
of  possession  and  a  surrender,  properly  so  called,  of 
an  estate  for  life  or  j^ears.     Quite  frequently,  in  using 

70.     See   United    States  v.  Call-  Cummings    v.    Dearborn,    56    Vt. 

fornia  &  Oregon  Land  Co.,  148  U.  441. 

S.    31,    37    L.    Ed.    354;     Derrick  71.     See  post,  §  567(m). 

V.    Brown,    66    Ala.    162    Reynolds  That    the    word    "quitclaim"    is 

V.  Shaver,  59  Ark.  299;   Morrison  used  does  not  in  itself  show  that 

V.  Wilson,  30  Cal.  344;  Wightman  the  conveyance  is  legally  a  quit- 

V.  Spofford;  56  Iowa,  145;   Taylor  claim   deed.     Hitt  v.  Caney  Fork 

V.  Harrison,  47   Tex.   454,  26  Am.  Gulf  Coal  Co.,    124   Tenn.  93,   139 

Rep.    304;    Nichols    v.    Schmitton,  S.  W.  693;  Garrett  v.  Christopher, 

107  Tex.  54,  174  S.  W.  283;  Cook  74  Tex.  453,  15  Am.  St.  Rep.  850, 

v.    Smith,    107    Tex.    119,    174    S.  12  S.  W.  67. 

W.    1094;    Baldwin    v.    Drew,    — -  72.     Co.  Litt.  337b.     See  2  Piatt, 

(Tex.    Civ.)    --,    ISO    S.    W.    614;  Leases,     499;     Comyn,     Landl.     & 

Ten.  336. 


§  431]  Teansfeb  Inter  Vivos.  1579 

the  term  even  in  its  technical  sense,  a  surrender  "of 
the  lease"  is  spoken  of,  but  this  must  be  understood  as 
merely  an  elliptical  expression  signifying  a  surrender 
of  the  estate  created  by  the  lease. 

The  courts  occasionally  refer  to  the  "rescission" 
or  '' cancellation"  of  the  lease  by  the  parties  to  the 
tenancy,  without  apparently  recognizing  that  a  termina- 
tion of  the  tenancy  as  a  result  of  an  agreement  of  tlie 
parties,  made  subsequently  to  its  creation,  necessarily 
involves  the  divesting  of  a  leasehold  estate  out  of  the 
lessee,  or  his  assignee,  and  a  revesting  thereof  in  the 
landlord.''^^  After  an  estate,  whether  in  fee  simple  or 
for  life  or  for  years,  has  been  conveyed,  the  grantor  and 
grantee  in  the  conveyance  cannot  effect  a  reconveyance 
of  the  estate  to  the  former  by  undertaking  to  "rescind" 
or  "cancel"  the  original  conveyance.^"*  The  parties 
to  a  contract  can  rescind  or  cancel  the  contract,  that 
is,  they  can  make  a  new  contract  by  which  each  agrees 
to  forego  his  rights  under  the  previous  contract,  but 
the  mere  making  of  a  new  contract  can  never  transfer 
property  rights  even  to  a  person  in  whom  they  were 
formerly  vested.  Any  rescission  or  -cancellation,  so 
called,  of  a  lease,  by  the  parties  thereto,  must  con- 
sequently, in  order  to  terminate  the  tenancy,  constitute 
in  legal  effect  a  surrender,  and  must  satisfy  the  re- 
quirements existing  with  reference  to  such  a  mode  of 
convey  ance.'^^* 

In  order  that  a  surrender  may  be  effected,  the 
estate  surrendered  must  be  no  greater  in  quantum 
that  the  estate  of  the  surrenderee,  since  otherwise  it 
cannot    merge    therein.'''      And    furthermore    it    must 

73.     See  Silva  v.  Bair,  141  Cal.  94   N.    W.   431;    Snyder   v.    Ilard- 

599,    75    Pac.    162;     Alschuler    v.  ing,   34   Wash.   286,   75  Fac.   812. 
Schiff,     164     in.     298,     45     N.     E.  74.     Post,  §  465. 

424;    Evans  v.  McKanna,  89  Iowa  74a.     Post,     this     section,     note 

362,     8     Am.     St.     Rep.     390,     56  80. 

N.   W.    527;    Andre    v.    Graebner,  75.     3     Preston,     Conveyancing, 

126    Mich.    116,    85    N.    W.    464;  166   et  seq. 
Geddis   v.    Folliett,    16    S.    D.   610, 


1580  Real  Property.  [§  431 

immediately  precede  the  latter  estate  as  regards  the 
right  of  possession,  with  no  vested  estate  intervening.'^'^ 
Consequently  if  A  leases  to  B  for  years  and  B  leases  to 
C,  the  subtenant  C  cannot  surrender  to  A,  and  if 
property  is  devised  to  A  for  life,  with  remainder  to 
B  for  life,  with  remainder  to  C  in  fee,  A  cannot,  though 
B  can,  surrender  to  C. 

Express  surrender.     Surrender  may  be  either 


''express"  or  "by  operation  of  law."  At  common  law 
an  express  surrender,  in  the  ordinary  case,  could  be 
made  orally,''^  but  this  was  changed  by  the  provision 
of  the  English  Statute  of  Frauds  that  a  surrender,  if 
not  by  act  and  operation  of  law,  must  be  in  writing, 
signed  by  the  surrenderor  or  his  agent,  and  there  are 
in   most   of   the   states    statutes   to    a    similar    effect.'^* 

Before  the  Statute  of  Frauds  the  cancellation  of 
an  instrument  of  lease  was  regarded  as  equivalent  to 
an  oral  surrender,  and  valid  as  such,'^^  but  this  is  no 
longer  the  case.*"'  As  elsewhere  stated,^^  the  cancella- 
tion of  an  instrument  of  conveyance,  after  its  delivery, 
does  not  have  the  effect  of  revesting  in  the  maker  the 
estate  conveyed  thereby,  and  this  is  as  true  of  a  con- 
veyance by  way  of  lease  for  a  terra  of  years  as  of  a 
conveyance  in  fee  simple. 

While  the  words  "surrender,  grant  and  yield  up" 
are  ordinarilj^  used  in  a  formal  instrument  intended  to 
take  effect  as  a  surrender,  no  particular  words  are 
necessary,  it  being  sufficient  that  an  intention  to  trans- 
fer the  leasehold  interest  to  the  reversioner  clearly 
appears.^-     Accordingly,  an  instrument  in  form  a  lease 

76.  Except  when  an  estate  for      Gilb.   Eq.  Cas.  235. 

years   is   interposed   between   two  80.     Roe    d.    Berkley    v.    Arch- 

freeliold    estates.      Id.     107,    and  bishop   of  York,   6   East  86;    Doe 

ante,    §    34.  d.    Courtail    v.    Thomas,    9    Barn. 

77.  Co.   Litt.   338a;    Sheppard's  &    C.    288;    Rowan    v.    Lytle,    11 
Touchstone    300.  Wend.    (N.  Y.)    616. 

78.  See     2     Tiffany,     Landlord  81.     Post,  §  465. 

&    Ten.,    §    189a.  82.     Farmer  v.  Rogers,  2  Wils. 

79.  Magennis    v.   Mac    Cullogh,      26;      Shepard     v.      Spaulding,     4 


§  431]  Transfer  Inter  Vivos.  1581 

of  the  premises  by  the  tenant  to  the  landlord  has  been 
regarded  as  sufficient  as  a  surrender,'*"  as  has 
what  was  in  terms  an  "agreement"  for  the  relin- 
quishment of  tlie  leasehold,  it  being  intended  to  take 
effect  as  a  surrender,^"*  Apparently,  in  England,  where 
a  mortgage  transfers  the  legal  estate  to  tlie  mortgagee, 
a  mortgage  of  the  leasehold  by  the  tenant  to  his  land- 
lord would  take  effect  as  a  surrender ,'"•'•  l3ut  such  a 
result  could  not  follow  in  any  juiisdiction  where  a 
mortgage  does  not  transfer  the  legal  title."*' 

Surrender  by  operation  cf  law.     A  surrender 

by  "act  and  oi)eration  of  law,"  which  is  expressly  ex- 
cepted from  the  Statute  of  Frauds,  is  a  surrender 
which  the  law  infers  from  certain  acts  by  the  parties 
as  being  inconsistent  with  the  continued  distinct  px- 
istenee  of  the  two  former  estates.  Occasionall}^  the 
theory  appears  to  be  asserted  that  surrender  by  opera- 
tion of  law  takes  place  because  the  acts  of  the  parties 
show  an  intention  or  agreement  that  the  leasehold 
estate  shall  be  surrendered;^"  but  it  is  somewhat  difficult 
to  regard  a  surrender  as  taking  place  by  operation  of 
law   when  it   results   from   the   agreement   or   intention 

Mete.    (Mass.)    416;    Greider's  Ap-  ing  Ass'n,   106   111.   221,   46   N.   E. 

peal,   5   Pa.   St.   422,   47   Am.   Dec.  752;    Talbot  v.  Whipple,  14  Allen 

413.  (Mass.)    177;    Tobener    v.    Miller, 

83.  Loyd  v.  Langford,  2  Mod.  68  Mo.  App.  569;  Meeker  v. 
174;  Smith  v.  Mapleback,  1  Spalsbury,  66  N.  J.  Law  60, 
Term  R.  441;  Shepard  v.  Spauld-  48  Atl.  1026;  Home  Coupon  fix- 
ing,  45   Mass.    (4    Mete.)    416.  change    Co.    v.    Goldfarb,     (N.    J. 

84.  Harris  v.  Hancock,  91  N.  Eq.)  74  At.  14.!;  O'Neill  v. 
Y.  340;  Allen  v.  .laquish,  21  Pear.se,  88  N.  J.  L.  733.  96  Atl. 
"Wend.    (N.    Y.)    628.  1102,    affirming    87    N.    J.    L.    382, 

85.  See  Cottee  v.  Richardson,  94  Atl.  312;  Bedford  v.  Ter- 
7    Exeh.    143.  hune,   30   N.   Y.    453,   86   Atl.   394; 

80.     See     Breeae     v.     Bange,     2  Hart  v.    Pratt,    19    Wa.sh.    560,    53 

E.  D.  Smith  N.  Y.)   474.  Pae.   711. 

87.     See    e.    g.    Beall    v.    White,  And    see    cases    cited    this    sec- 

94    U.    S.    382,    24    L.    Ed.    173;  tion.  post   note    93. 
Brewer  v.   National   Union   Build- 

R.    P.— 25 


1582 


Real  Propee,ty. 


[§  431 


of  tlie  parties,  even  tlioiigh  this  is  shown  by  acts  rather 
than   by  words. ^^ 

A  surrender  by  operation  of  law  occurs  when  the 
tenant  accepts  from  the  reversioner  a  new  lease,  to  be- 
gin immediately,  or  at  any  time  during  the  existence 
of  the  previous  lease;  this  result  being  based  on  the 
theory  that,  by  such  acceptance,  the  tenant  is  estopped 
to  deny  the  validity  of  such  new  lease,  which  neverthe- 
less cannot  be  valid  unless  the  first  lease  is  terminated.*^ 
The  new  lease  must,  it  seems,  be  sufficient  to  pass  an  in- 
terest according  to  the  intention  and  contract  of  the  pav- 
ties,^*^  but  the  fact  that  the  new  lease  is  oral  is  imma- 
terial if  an  oral  lease  is  sufficient  to  create  the  interest 
intended  to  be  created.^^  Since  the  surrender  in  such  case 
is  by  operation  of  law,  it  might  be  considered  as  takings 
place   even  contrary  to  the   intention  of  the  parties.^- 


88.  So  in  Felker  v.  Richard- 
son, 67  N.  H.  509,  32  Atl.  830,  it 
is  said,  per  Carpenter,  J.,  "A 
surrender  by  agreement,  whether 
express  or  implied,  is  the  act,  not 
of  the  law,  but  of  the  parties.  To 
constitute  a  surrender  by  opera- 
tion of  law,  overt  acts  of  both 
parties  inconsistent  with  the  con- 
tinuance of  the  term  are  essen- 
tial." But  see  Professor  Aigler's 
note  in  15  Mich.  Law  Rev.  659, 
and  the  article  there  referred  to 
in  5  Irish  Jurist,  117,  also  Editor- 
ial note  28  Harv.  Law  Rev.  313. 

89.  Lyon  v.  Reed,  13  Mees.  & 
W.  285;  Otis  v.  McMillan,  70  Ala. 
46;  Welcome  v.  Hess,  90  Cal.  507. 
27  Pac.  369;  Flagg  v.  Dow,  99 
Mass.  18;  Bowman  v.  Wright,  65 
Neb.  661.  91  N.  W.  580;  Schief- 
felin  V.  Carpenter,  15  Wend  (N. 
Y.)  400;  Edwards  v.  Hale,  37 
W.  Va.  193,  16  S.  E.  487. 

Acceptance  by  the  tenant  from 
the  landlord  of  an  interest  other 
than    an    estate    for    years,    if   in- 


consistent with  the  former  ten- 
ancy, has  likewise  been  regarded 
as  effecting  a  surrender  by  oper- 
ation of  law,  as  when  "a  lessee 
for  years  accepts  a  grant  of  a 
rent,  common,  estovers,  herbage, 
or  the  like,  for  life  or  years,  out 
of  the  same  lands."  Bac.  Abr., 
Leases  (S.)  2,  1.  See  2  Tiffany, 
Landlord  &  Ten.  §  190  b  (2). 

90.  Doe  d.  Biddulph  v.  Poole, 
11  Q.  B.  713;  Zick  v.  London 
United  Tramways  Ltd.,  (1908) 
2  K.  B.  126;  Schiefflin  v.  Car- 
penter. 15  Wend.  (N.  Y.)  400;  Coe 
v.  Hobby,  72  N.  Y.  141.  28  Am. 
Rep.   120. 

91.  Comyn's  Dig.  "Surrender," 
(Tl);  Fenner  v.  Blake,  (1900),  1 
Q.  B.  426;  Evans  v.  McKanna,  89 
Iowa,  362,  48  Am.  St.  Rep.  390, 
56  N.  W.  527;  Schiefflin  v.  Car- 
penter. -5  Wend.  (N.  Y.)  400;  Coe 
V.  Hobby.  72  N.  Y.  141,  28  Am. 
Rep.    120. 

92.  See  Lyon  v.  Reed,  13  Mees. 
&  W.   285;    Brown   v.   Cairns,   107 


-§431]  Tkansfer  Intek  Vivos.  158o 

Occasionally,  however,  a  different  view  has  l>een  taken, 
that  the  new  lease  merely  raises  a  presumption  of 
surrender,  capable  of  rebuttal  by  evidence  that  the 
intention  was  otherwise.^^ 

The  question  has  occasionally  arisen  whether  an 
assignee  of  the  lessee,  by  reason  of  his  recognition  by 
the  landlord  as  tenant  of  the  premises,  can  be  regarded 
as  holding  under  a  new  lease,  so  as  to  effect  a  sur- 
render of  the  estate  created  by  the  original  lease,  and 
consequently  to  put  an  end  to  the  liability  of  the 
original  lessee  on  account  of  rent.  The  cases  are 
generally  to  the  effect  that  the  mere  acceptance  of 
rent  from  the  assignee  does  not  involve  a  new  lease, 
so  as  to  effect  a  surrender,^*  and  it  is  difficult  to  see 
how  any  other  view  could  be  adopted.  The  assignee  is 
bound  to  pay  the  rent,  an'd  the  acceptance  of  payment 
from  him  involves  merely  the  recognition  of  a  liability 
already  existing.^^ 

A  second  mode  of  surrender  by  operation  of  law, 
and  one  which  frequently  occurs,  results  from  the  re- 

lowa,  727,  77  N.  W.  478;   Enyeart  (Mass.)    337;    Detroit    Pharmacal 

V.   Davis,   17  Neb.   228,   22   N.   W.  Co.    v.    Burt.    124    Mich.    220,    82 

449.  N.    W.    893;     Rees    v.    Lowry,    57 

93.  Flagg  V.  Dow,  99  Mass.  18  Minn.  381,  59  N.  W.  310;  Ed- 
(semble) ;  Thomas  v.  Zumbalen.  wards  v.  Spalding,  20  Mont.  54, 
43  Mo.  471;  Brown  v.  Linn  49  Pac.  443;  Bouscaren  v.  Brown, 
Woolen  Co.,  114  Me.  266,  95  Atl.  40  Neb.  722,  42  Am.  St.  Rep.  692, 
1037;  Smith  v.  Kerr,  108  N.  Y.  59  N.  W.  385;  Creveling  v.  De 
31,  2  Am.  St.  Rep.  362,  15  N.  E.  Hart,  54  N.  J.  Law  338.  23  At. 
70.  See  Editorial  note  22  Harv.  611:  Laughran  v.  Smith,  75  N. 
Law  Rev.  55.  Y.  205;   Frank  v.  McGuire,  42  Pa. 

94.  Bonetti  v.  Treat,  91  Cal.  77;  Adams  v.  Burke,  21  R.  L 
233,  13  L.  R.  A.  418.  27  Pac.  612;  126,  42  At.  515;  Granite  BIdg. 
Triest  &  Co.  v.  Goldstone,  173  Cal  Corp.  v.  Rubin,  40  R.  I.  208,  100 
240,  159  Pac.  715;  Cuesta  v.  Gold-  Atl.  310;  Johnson  v.  Norman,  98 
smith,  1  Ga.  App.  48,  57  S.  E.  Wash.  331,  167  Pac.  923.  And 
983;  Grommes  v.  St.  Paul  Trust  cases  cited  ante,  §  407,  note  59c. 
Co.,  147  111.  634,  35  N.  E.  820,  95  There  are  cases  however 
7  Am.  St.  Rep.  248;  Harris  v.  which  regard  the  original  lessee 
Heachman,  62  Iowa,  411,  17  N.  as  relieved  from  liability  in  such 
W.  592;    Brewer  v.  Dyer,  7  f'nsh.  case.     See  ante,   §   407,  note  59d. 


1584  Eeal  Peopeety.  [§  431 

linquishment  of  possession  by  the  tenant  and  the  re- 
sumption of  possession  by  the  landlord.''*'  The  theory 
of  such  surrender  would  seem  to  be  that  the  revesting 
of  possession  in  the  landlord  to  the  exclusion  of  the 
tenant,  by  the  action  of  both  parties,  being  inconsistent 
with  the  continuance  of  an  outstanding  leasehold  in 
the  tenant,  both  are  estopped  to  assert  that  the  relation 
of  landlord  and  tenant  still  exists.  It  is  immaterial 
whether  such  change  of  possession  is  the  result  of 
agreement.  The  tenant  may  relinquish,  possession  to  the 
landlord  in  accordance  with  an  agreement  to  that  ef- 
fect,''"  but  more  frequently  the  change  of  possession  oc- 
curs as  a  result  of  the  abandonment  of  the  premises  by 
the  tenant  and  the  subsequent  resumption  of  the  pos- 
session thereof  by  the  landlord. 

The  question  frequenth'  arises  whether  there  has 
been  such  a  resumption  of  possession  by  the  landlord, 
upon  the  abandonment  of  the  premises  by  the  tenant, 
as  to  give  rise  to  a  surrender  by  operation  of  law, 
relieving  the  tenant  from  liability  under  the  lease.  This 
appears  to  depend,  in  each  case,  on  whether  the  land- 
lord has  taken  possession  with  the  intention  of  oc- 
cupying and  controlling   the   premises   as   his   own,    to 

96.  Grimman  v  Legge,  8  Barn.  ises  and  the  tenant  accedes  to 
&  C.  324;  Dodd  v.  Acklom,  6  such  demand.  See  e.  g.  Kean 
Man.  &  G.  672;  Shahan  v.  v.  Rogers,  146  Iowa,  559,  123  N. 
Herzberg,  73  Ala.  59;  WiUiams  W.  978:  Conkling  v.  Tuttle.  52 
V.  Jones,  1  Bush  (Ky.)  621;  Mich.  630,  18  N.  W.  391;  Smith 
Lamar  v.  McNamee,  10  Gill  &  J.  v.  Pendergast.  26  Minn.  318,  3  N. 
(Md.)  116,  32  Am.  Dec.  152;  W.  978;  Frankel  v.  Sternau,  92 
Talbot  V.  Whipple,  14  Allen,  Ohio  St.  197,  110  N.  E.  747; 
(Mass.)  177;  Prior  v.  Klso,  81  Patchin's  Ex'r  v.  Dickerman,  31 
Mo.  2^1;  Elgutter  v.  Drishaus,  44  Vt.  666;  Eimerman  v.  Nathan, 
Neb.  378,  63  N.  W.  19;  Dennis  v.  116  Wis.  124,  92  N.  W.  550 
Miller,  68  N.  J.  Law  320,  53  Atl.  {semhle) ;  Boyd  v.  Gore,  143  Wis. 
394;  Elliott  v.  Aiken,  45  N.  H.  5,31,  128  N.  W.  68;  Compare 
30;  Hart  v.  Pratt,  19  Wash.  560,  Whittaker  v.  Barker,  1  Cromp  & 
53  Pac.  711.  M.    113;    Lamar   v.    McNamee,   10 

97.  There  is  such  an  agree-  Gill  &  J.  (Md.)  116,  32  Am.  Dec. 
ment,  it  appears,  if  the  landlord  ]52;  Felker  v.  Richardson,  67  N. 
demands  possession  of  the  prem-  H.  509,  32  Atl.  830. 


§  431J 


Transfek  Inter  Vivus. 


1585 


the  exclusion  of  the  tenant  in  case  the  latter  desires  to 
return,"^  and  this  is  ordinarily  a  question  of  fact.''''* 

That  the  landlord,  after  the  tenant's  abandonment, 
entered  and  cared  for  the  premises,^  or  that  he  made 
repairs,-  has  been  regarded  as  not  in  itself  involving 
such  a  resumption  of  possession.  When  the  tenant,  upon 
abandoning  the  premises,  sends  the  key  to  the  landlord 
or  leaves  it  at  his  residence  or  place  of  business,  the 
fact  that  the  landlord  fails  to  return  it  to  the  tenant  does 
not  necessarily  show  a  resumption  of  exclusive  pos- 
session of  the  jDremises  for  this  purpose,-^  though  the 


98.  Welcome  v.  Hess,  90  Cal. 
507,  27  Pac.  369,  25  Am.  St.  Rep. 
145;  Duffy  v.  Day,  42  Mo.  App. 
638;  Meeker  v.  Spalsbury,  66  N. 
J.  Law  60,  48  Atl.  1026;  Har- 
grove V.  Bourne,  47  Okla.  484, 
150  Pac.  121. 

99.  Hays  v.  Goldman,  71  Ark. 
251,  72  S.  W.  563;  Carson  v. 
Arvantes,  10  Colo.  App.  582, 
50  Pac.  1080;  Okie  v.  Pearson,  23 
App.  D.  C.  170;  Brewer  v.  Nation- 
al Bldg.  Ass'n,  166  111.  221,  46 
N.  E.  752;  Armour  Packing  Co.  v. 
Des  Moines  Park  Co..  116  Iowa, 
723,  93  Am.  St.  Rep.  270,  89  N. 
W.  196;  Sander  v.  Holstein  Com- 
mission Co.,  118  Mo.  App.  29, 
121  Mo.  App.  293;  Hargrove  v. 
Bourne,  47  Okla.  484,  150  Pac. 
121;  White  v.  Berry,  24  R.  I.  74. 
52  Atl.  682;  Kneeland  v.  Schmidt. 
78  Wis.  :545.  11  L.  R.  A.  498,  47 
N.  W.   438. 

1.  .Joslin  v.  McLean,  99  Mich. 
480,  58  N.  W.  467;  Duffy  v.  Day, 
42  Mo.  App.  638;  Rucker  v. 
Mason,— Okla.,— 161  Pac.  195; 
Milling  V.  Becker,  96  Pa.  182. 

2.  Cook  V.  Anderson,  85  Ala. 
99,  4  So.  713;  Brewer  v.  National 
Union  Bldg.  Ass'n  166  111.  221, 
46     N.     E.     752;     Sessinghaus     v. 


Knocke,  127  Mo.  App.  300,  105  S. 
W.  283;  Haynes  v.  Aldrich,  133  N. 
Y.  287,  16  L.  R.  A.  183,  28  Am. 
St.  Rep.  636,  31  N.  E.  94; 
Breuckman  v.  Twibill,  89  Pa. 
58;  Smith  v.  Hunt,  32  R.  I.  326, 
79  Atl.  826. 

3.  Oaster  v.  Henderson,  2  Q. 
B.  Div.  575;  Fehringer  v.  Wagner, 
Stockbridge  Trading  Co.,  61  Colo. 
359,  157  Pac.  1071;  Ledsinger  v. 
Burke,  113  Ga.,  74,  38  S.  E.  313; 
ToUe  V.  Orth,  75  Ind.  298,  39  Am. 
Rep.  147;  Martin  v.  Stearns,  52 
Iowa,  345,  35  Am.  Rep.  278,  3  N. 
W.  92;  Withers  v.  Larrabee.  48 
Me.  570  Joslin  v.  McLean,  99 
Mich.  480,  58  N.  W.  467;  Lucy  v. 
Wilkins,  33  Minn.  441,  23  N.  W. 
861;  Landt  v.  Schneider,  31  Mont. 
15.  77  Pac.  307;  Underbill  v. 
Collins,  132  N.  Y.  269,  30  N.  E. 
576;  Bumiller  v.  Walker,  95  Ohio 
.■!44,  L.  R.  A.  1918B,  96,  116  N.  E. 
797;  Bowen  v.  Clarke,  22  Ore. 
566,  29  Am.  St.  Rep.  625,  30  Pac. 
430;  Auer  v.  Penn,  99  Pa.  370, 
44  Am.  Rep.  114;  John  B.  Webster 
Co.  V.  Grossman.  33  S  .D.  383,  146 
N.  W.  565,  (acceptance  of  Key  by 
Janitor);  C'liandler  v.  Hinds,  135 
Wis.    43,    115    N.    W.   :!39. 

That  the  landlord,  for  the  pur- 


1586 


Real  Peopejrty. 


[§  431 


acceptance  and  retention  of  tlie  key,  combined  with  other 
circumstances,  may  have  this  effect.'^  The  attempt  of 
the  landlord  to  lease  the  premises  to  a  third  person,^ 
or  even  his  actual  making  of  such  a  lease,  to  take 
effect  immediately  in  possession,  does  not,  in  a  number 
of  jurisdictions,  show  such  an  assumption  of  control 
over  the  premises  as  to  give  rise  to  a  surrender,  re- 
lieving the  former  tenant  from  further  liability  under 
the  previous  lease,^  especially  in  case  the  landlord, 
before  making  the  second  lease,  notifies  the  former 
tenant  that  he  is  about  to  make  such  a  lease  on  the 
latter 's  account,  that  is,  that  his  purpose  is  to  reduce, 
but  not  necessarily  to  extinguish,  the  latter 's  liability 
for  rent.'^     By  other  cases  it  is  held  that  such  reletting 


pose  of  making  repairs,  obtained 
the  key  from  the  tenant,  was 
held  not  to  relieve  the  tenant, 
he  having  been  notified  that  he 
would  still  be  held  liable.  Smith 
V.  Hunt,  32  R.  I.  326,  79  Atl.  823. 

4.  Phene  v.  Popplewell,  12  C. 
B.  N.  S.  334;  Brewer  v.  National 
Union  Bldg.  Ass'n  166  111.  221,  46 
N.  E.  752;  Hesseltine  v.  Seavey, 
16  Me.  212;  Buckingham  Apart- 
ment House  Co.  V.  Dafoe,  78 
Minn.  268,  80  N.  W.  974;  Fink 
V.  Browe  Co.,  (N.  J.  Ch.)  99  Atl. 
926;  Bowen  v.  Clarke,  22  Ore. 
566,  29  Am.  St.  Rep.  625,  30  Pac. 
430. 

5.  Walls  V.  Atcheson,  3  Bing. 
462;  Joslin  v.  McLean,  99  Mich. 
48,  58  N.  W.  467;  Blake  v.  Dick, 
15  Mont.  236,  48  Am.  St.  Rep.  671, 
38  Pac.  1072;  O'Neil  v.  Pearse.  88 
N.  J.  L.  733,  96  Atl.  1102  aff'g  87 
N.  J.  L.  382,  94  Atl.  312;  Haynes 
V.  Aldrich.  133  N.  Y.  287,  16  L. 
R.  A.  183,  28  Am.  St.  Rep.  636, 
31  N.  E.  94;  Lane  v.  Nelson.  167 
Pa.  602,  31  Atl.  864.  In  Meagher 
V.    Eilers    Music    House,    S4    Ore. 


33,  164  Pac.  373,  the  decision  to 
this  effect  was  to  some  extent 
based  on  the  fact  that  the  second 
lease  expressly  reserved  a  right 
in  the  original  tenant  to  resume 
possession. 

6.  Humiston,  Keeling  &  Co.  v. 
Wheeler,  175  111.  514,  51  N.  E. 
893;  Martin  v.  Stearns,  52  Iowa, 
345,  3  N.  W.  92;  H.  S.  Chase  & 
Co.  v.  Evans,  178  Iowa,  885,  160 
N.  W.  346;  Scheelky  v.  Koch,  119 
N.  C.  80,  25  S.  E.  713;  Bumiller  v. 
Walker,  95  Ohio,  344,  L.  R.  A. 
1918B,  96,  116  N.  E.  797;  Bowen 
V.  Clarke,  22  Ore.  566,  29  Am.  St. 
Rep.  625,  30  Pac.  430;  Auer  v. 
Penn,  99  Pa.  370,  44  Am.  Rep. 
114;  Auer  v.  Hoffmann.  132  Wis. 
620,  112  N.  W.  1090. 

7.  See  Williamson  v.  Crossett, 
62  Ark.  393:  Renard  v.  Renard, — 
Cal.— 165  Pac.  694;  Rehkopf  v. 
Wirz,  31  Cal.  App.  695,  161  Pac. 
285;  Brown  v.  Cairns,  107  Iowa, 
727.  77  N.  W.  478;  Kean  v. 
Rogers,  146  Iowa.  559,  123  N.  W. 
754;  Oldewurtel  v.  Wiesenfeld,  97 
Md.    165.    54    Atl.    969;     Alsup    v. 


§  431] 


Transfer  Inter  Vivos. 


1587 


necessarily  brings  to  an  end  the  tenancy  previously 
existing,^  and  in  favor  of  this  view  is  the  fact  that  the 
contrary  view  appears  to  involve  a  right  of  possession 
in  two  distinct  persons  under  two  distinct  leases  at 
one  and  the  same  time.** 

A  third  mode  of  surrender  by  operation  of  law  oc- 
curs in  the  case  of  a  new  lease  by  the  landlord  to  a 
third  person,  accompanied  by  the  former  tenant's  re- 
linquishment of  possession  in  favor  of  such  person. ^*^ 
And  it  is  apparently  on  this  principle,  or  on  a  prin- 
ciple akin  thereto,  that  a  surrender  by  operation  of 
law  has  occasionally  been  regarded  as  taking  place  when 
the  landlord  accepted  as  his  tenant  a  sublessee  of  the 
original   tenant.^^ 


Banks,  68  Miss.  664,  13  L.  R.  A. 
598,  24  Am.  St.  Rep.  294,  9  So. 
895;  McGinn  v.  B.  H.  Gladding 
Dry  Goods  Co.,  40  R.  I.  348,  101 
Atl.  129. 

8.  Oastler  v.  Henderson,  2  Q. 
B.  Div.  575:  Welcome  v.  Hess,  90 
Cal.  507,  25  Am.  St.  Rep.  145, 
27  Pac.  380:  Rice  v.  Dudley,  65 
Ala.  68;  Haycock  v.  Johnston,  97 
Minn.  289,  114  Am.  St.  Rep.  715. 
106  N.  W.  304;  Gray  v.  Kaufman 
Dairy  &  Ice  Cream  Co.,  162  N. 
Y.  388,  49  L.  R.  A.  580,  76  Am. 
St.  Rep.  327,  56  N.  E.  903;  Pelton 
V.  Place  71  Vt.  430,  46  Atl.  63. 

9.  See  2  Tiffany,  Landlord  & 
Ten.  p.  1340,  14  Mich.  Law  Rev. 
82;   15  Id.  559. 

In  Whitcomb  v.  Brant.  100  Atl. 
175,  it  Mas  held  by  the  New 
Jersey  Court  of  Errors  and  Ap- 
peals that  a  lessor  making  a 
new  lease,  upon  abandonment  by 
the  first  lessee,  at  a  higher  rent 
than  that  reserved  in  the  first 
lease,  was  not  liable  for  the  ex- 
cess to  the  first  lessee,  although 
he   had    refused    to    consent    to    a 


surrender.  The  case  is  criticized. 
30  Harv.  Law  Rev.  766. 

10.  Nickells  v.  Atherstone,  10 
Q.  B.  944;  Morgan  v.  McCollister, 
110  Ala.  319,  20  So.  54;  Triest  & 
Co.    V.    Goldstone,    173    Cal.    240, 

159  Pac.  715;  Williams  v.  Vander- 
bilt,  145  111.  238,  21  L.  R.  A.  489, 
36  Am.  St.  Rep.  486,  34  N.  E. 
476;  Rogers  v.  Dockstader,  90 
Kan.  189,  13S  Pac.  717;  Kins^y  v. 
Minnick,  43  Md.  112;  Amory  v. 
Kannoffsky,  117  Mass.  351,  19 
Am.  Rep.  416;   Gallop  v.  Murphy, 

160  Mo.  App.  1,  141  S.  W.  438; 
Washoe  Coui.ty  Bank  v.  Cai  ipbell, 
41  Nev.  153,  67  Pac.  643;  In  re 
Sherwoods,   210  Fed.   754. 

As  to  the  effect  of  the  invalidity 
of  the  new  lease,  see  editorial 
note  28  Harv.  Law  Rev.  313, 
Commenting  on  Johnson  v.  North- 
ern Trust  Co.,  265  111.  263,  106 
N.  E.  814.  Compare  2  Tiffany, 
Landlord  &  Ten.  p.  1347. 

11.  Dills  v.  Stobie,  81  lU.  202 
(srmble);  Stimmel  v.  Waters,  2 
Bush  (Ky.)  282;  Amory  v.  Kan- 
offsky,  117  Mass.  351,  19  Am.  Rep. 


1588 


Real,  Property. 


[§§  431,  432 


Effect  of  surrender.  A  surrender  by  a  par- 
ticular tenant  has  the  effect  of  extinguishing  his  es- 
tate/^ and  if  he  is  a  tenant  under  a  lease  it  terminates 
all  future  liability  under  the  covenants/''  the  most 
ordinary  application  of  this  principle  occurring  in  the 
case  of  a  covenant  to  pay  rent,  which  ceases  to  be 
effective  after  a  surrender.^*  A  surrender  does  not, 
however,  operate  to  the  prejudice  of  a  third  person.^"* 
For  instance,  the  interest  of  a  subtenant  is  not  affected 
by  the  surrender  of  the  estate  of  the  head  tenant,^'' 
nor  is  a  lien  on  the  estate  surrendered  affected  by  the 
surrender.^^ 

§  432.  Conveyances  failing  to  take  effect  in  the 
manner  intended.  A  conveyance  which  is  intended  to 
take  effect  as  a  certain  class  of  conveyance,  if  not  valid 
for  that  purpose,  will,  if  possible,  be  construed  as  a 
conveyance  of  another  character,  in  order  that  it  may 


416;  Snyder  v.  Parker,  75  Mo. 
App.  529;  Thomas  v.  Cook,  2 
Barn  &  Aid.  119.  See  2  Tiffany. 
Landlord  &  Ten.  §  154. 

12.  Co.  Litt  338b;  Terstegge  v. 
First  German  Mut.  Benev.  Soc. 
92  Ind.  82,  47  Am.  Rep.  135; 
Deane  v.  Caldwell,  127  Mass.  242; 
Harris  v.  Hiscock,  91  N.  Y.  340; 
Appeal  of  Greider,  5  Pa.  422,  47 
Am.    Dec.    413. 

13.  Piatt,  Covenants,  585; 
American  Bonding  Co.  v.  Pueblo 
Inv.  Co.,  150  Fed.  17,  9  L.  R.  A. 
(N.  S.)  557:  Deane  v.  CaldweU, 
127  Mass.  242;  Snowhill  v.  Reed, 
49  N.  J.  L.  292,  60  Am.  Rep.  615, 
10  Atl.  737. 

14.  Ante,   §   413,   note   66. 
15     Co.  Litt  338b. 

16.  Mellor  v.  Watkins,  L.  R. 
9  Q.  B.  400:  Mitchell  v.  Young, 
80  Ark.  411,  7  L.  R.  A.  (N  .S.), 
221,  17  Am.  St.  Rep.  89,  97  S.  W. 


454:  Buttner  v.  Kasser.  19  Cal. 
App.  755,  127  Pac.  811:  McKenzie 
V.  Lexington.  4  Dana  (Ky.)  129; 
Eten  V.  Luyster,  60  N.  Y.  252; 
Krider  v.  Ramsay,  79  N.  C.  354: 
Hessel  v.  .Johnson,  129  Pa.  173. 
5  L.  R.  A.  851,  15  Am.  St.  Rep. 
716,  18  Atl.  754;  Cuschner  v. 
Westlake.  43  Wash.  690,  86  Pac. 
948. 

So  it  has  been  held  that  al- 
though the  surrender  of  the  es- 
tate of  the  head  tenant  prevents 
the  recovery  from  the  subtenant 
of  rent  afterwards  accruing  (ante 
§  413,  note  G9a)  the  surrenderee 
is  still  bound  by  a  covenant 
entered  into  by  the  original  les- 
sor. Bailey  v.  Richardson,  66 
Cal.  416,  5  Pac.  910;  Standard 
Oil  Co.  v.  Slye,  164  Cal.  435,  129 
Pac.    589. 

17.  Farnum  v.  Hefner,  79  Cal. 
575,  12  Am.  St.  Rep.  174.  21  Pac. 


<§  433']  Transfer  Inter  Vivos.  1589 

take  effect.^**  This  important  rule  has  been  applied  in 
numerous  connections.  For  instance,  a  conveyance  in- 
tended to  take  etifect  as  a  bargain  and  sale,  but  which 
is  void  as  such  for  want  of  a  pecuniar}^  consideration, 
will  take  etfect  as  a  covenant  to  stand  seised,  if  a  con- 
sideration of  blood  or  marriage  exists;^''  and,  as  be- 
fore stated,  a  conveyance  in  words  of  release,  void  as 
such  for  want  of  an  estate  or  possession  in  the  releasee, 
will  be  supported  as  a  conveyance  by  bargain  and 
sale,  or  otherwise.-"  This  principle  has  also  been  adopted 
to  support  limitations  of  future  estates  w-hich  could 
not  fee  supported  unless  the  conveyance  were  regarded 
as  operating  under  the  Statute  of  Uses.-^ 

II.   Form  and  Essentials  of  a  Conveyance. 

§  433.  General  considerations.  All  conveyances 
of  freehold  or  leasehold  interests  in  lands,  other  than 
certain  leases  for  three  years  or  less,  must,  by  the 
Statute  of  Frauds,  be  in  writing.-^  In  most,  if  not 
all,  the  states  of  this  country  there  are  statutes  to  the 
same  general  effect.^"  These  statutes,  however,  as  be- 
before  stated,  do  not  interfere  with  surrenders  by 
operation   of  law,-^     And   even   in   the  case   of   an   at- 

955;    Dobschuetz    v.    HoUiday,    82  United     States     v.     Housman,     6 

111.  371;    Firth  v.  Rowe,  53  N.  J.  Paige     (N.    Y.)    526;     Eckmaii    v. 

Eq.    520,    ;;2    Atl.    1064;    Allen    v.  Eckman,  68  Pa.  St.  460. 
Brown.  60  Barb.   (N.  Y.)   39.  20.     See  ante,   note   ZW. 

18.  Norton  Deeds,  46,  citing  21.  Roe  d.  Wilkinson  v.  Tran- 
the  numerous  English  cases.  mer,  2  Wils.  75,  Willes,  682; 
Goodtitle  v.  Bailey,  Cowp.  600;  Ward  v.  Wooten,  75  N.  C.  413; 
Roe  d.  Wilkinson  v.  Traniner,  Wall  v.  Wall  ,  30  Miss.  91,  64 
Willes,  682;  Foster's  Lessee  v.  Am.  Dec.  147;  Merrill  v.  Pub- 
Dennison.  9  Ohio,  121;  Hunt  v.  lishers  Paper  Co.,  77  N.  H.  285, 
Hunt,  14  Pick.  (Mass.)  374;  90  Atl.  786;  Rembert  v.  Vetoe, 
Lambert  v.  Smith,  9  Ore.  185,  191.  89  S.  C.  198,  71  S.  E.  959. 

See  Gray.  Perpetuities  §  65.  22.     29  Car.   II  c.  3,  p.  1-3. 

19.  Crossing  v.  Scudamore,  2  23.  1  Stimson's  Am.  St.  Law, 
Lev.    9.    1     Mod.    175;     Morton    v.       S§   1560.   4143. 

Sledge.     29     Ala.     478;     Bank     of  24.     See  ante,  §  431. 


1590  Keal  Property.  [^  433 

tempted  oral  conveyance,  the  intended  grantee,  by 
making  improvements  upon  the  property,  may  create 
an  equity  in  himself  entitling  him  to  a  valid  written 
conveyance.^^ 

At  common  law,  all  written  conveyances  of  land,  as 
well  as  most  other  written  instruments,  were  in  the 
form  of  deeds,  that  is,  of  instruments  under  seal,  and 
a  deed  was  either  a  ''deed  of  indenture"  or  a  "deed 
poll."  A  deed  of  indenture  was  a  deed  made  between 
two  or  more  persons,  while  a  deed  poll  was  made  by  one 
person  only.-'^  These  terms  are  thus  used  in  England 
at  the  present  day,  and  they  are  occasionally  so'  used 
in   this   country. 

A  carefully  drawn  conveyance  usually  consists  of 
the  following  parts :  At  the  commencement  the  names 
of  the  parties  are  stated,^"  and  the  date  is  sometimes 
here  given,  though  it  is  frequently  placed  at  the  end. 
Next  come  the  recitals,  if  there  are  any,  these  being 
statements  of  fact,  explanatoiy  of  the  transaction.  A 
statement  of  the  consideration  and  of  its  payment  and 
receipt  then  follow,^^  and,  after  this,  the  operative 
words  of  conveyance,-''  with  a  description  of  the  land 
conveyed,^^  and  any  exception  therefrom."^^  The  parts 
thus  far  eimme rated  constitute  what  is  known  as  "the 
premises,"  The  premises  are  followed  by  the  "haben- 
dum" which  limits  the  estate  to  be  taken  by  the 
grantee,   and  is   usually   introduced  by  the  words   "to 

25.  Post,  §  547.  queutly,  conveyancers  adopted  the 

26.  Co.  Litt.  229a.  The  word  practice,  which  still,  it  seems, 
, 'indenture"  originated  in  the  fact  prevails  in  England,  of  cutting 
that  two  copies  of  the  deed  were  all  deeds  between  two  or  more 
usually  written  on  the  same  parties  in  a  waving  line  at  the 
piece  of  parchment,  with  some  top.  2  Blackst.  Comm.  296;  Wil- 
word  or  letters  written  between  Hams,  Real  Prop.  (18th  Ed.)  150. 
them,    through    which    the    parch-  27     .Post,   §   434. 

ment  was  cut  in  an  indented   or  28  Post,    §    438. 

waiving   line.     The   words    "deed  29.  Post,    §   435. 

poll"    refer    to    a    deed    "polled"  30.  Post,  §§   441-448. 

or    shaven    at    the    top.      Subse-  31.  Post,   §   436. 


§  434]  Transfer  Inter  Vivos.  1591 

have  and  to  hold.  "^-  Any  declaration  of  trust  which 
is  sought  to  be  made  is  here  inserted.  The  "redden- 
dum" or  reservation''  then  follows,  after  that  the 
statement  of  any  condition  or  power  affecting  the 
grant,  and  then  the  covenant  or  covenants  of  title.-^^ 
The  conclusion  usually  consists  of  a  formal  reference  to 
the  execution,  and  the  signatures  and  seals  of  the 
parties  are  then  placed  by  them  at  the  foot  of  the 
instrument.^^  There  is  also,  almost  invariably,  a  certi- 
ficate by  an  officer  that  the  conveyance  was  acknow- 
ledged by  the  grantors. ^*^ 

Though  a  well  drawn  conveyance  usually  contains 
all  or  most  of  these  parts  above  referred  to,  a  convey- 
ance containing  merely  the  names  of  the  parties  and 
words  of  conveyance,  with  a  description  of  the  land, 
if  duly  executed,  is  sufficient  to  vest  at  least  an  estate 
for  life  in  the  grantee.^^ 

§  434.  Designation  of  the  parties.  A  conveyance 
should  designate  with  certainty  the  name  of  the  grantor, 
and  this  should  regularly  be  done  at  the  commence- 
ment. It  is  sufficient,  however,  if  the  name  as  given 
is  sufficient  to  enable  the  grantor  to  be  identified,  and 
the  fact  that  his  name  as  it  appears  in  the  instrument 
differs  from  his  actual  name,  or  from  the  name  signed 
thereto,  does  not  invalidate  the  conveyance.^^  A  con- 
veyance in  terms  by  the  "heirs"  of  a  person  deceased 
is   sufficient,  since  they  are  capable  of  identification. '^'-^ 

32.  Post,    §    437.  361,    8    Am.    St.    Rep.    671,    37    N. 

33.  Post,   §   4;}6.  W.  788;   Houx  v.  Batteen,  68  Mo. 

34.  Post,  §§   449-456.  64;    Rupert    v.    Penner,    35    Neb. 

35.  Post,    §§    457,    458.  587,    17    L.    R.   A.    824,    53    N.    W. 

36.  Post,  §  460.  598;    David  v.   Williamsburg  City 

37.  Co.  Litt.  7a;  4  Kent's  Fire  Ins.  Co.,  83  N.  Y.  265,  38 
Comm.  461.  Am.  Rep.  418;  Jenkins  v.  Jenkins, 

38.  Comyn's  Dig.  "Fait"  (E  148  Pa.  St.  216,  23  Atl.  985;  Chap- 
3);  Erskine  v.  Davis,  25  lU.  251;  man  y.  Tyson,  39  Wash.  523,  81 
Nicodemus    v.    Young,    90    Iowa,  Pac.  1066. 

423,    57     N.    W.    906;     Bierer    v.  39.     Blaisdell  v.  Morse,   75  Me. 

Fretz,    32    Kan.    329,    4    Pac.    284;       542. 
Wakefield     v.     Brown,     38     Minn. 


1592 


Real.  Propebty. 


[§  434 


It  lias  generally  been  held  that,  when  two  or  more 
persons  join  in  the  execution  of  a  conveyance,  only  such 
as  are  named  in  the  body  of  the  instrument  will  be 
regarded  as  parties  thereto.  This  rule  has  usually 
been  applied  in  the  cases  of  conveyances  by  a  husband, 
the  joinder  in  the  execution  of  which  by  the  wife  has 
been  regarded  as  insufficient  to  release  her  dower,  or 
otherwise  divest  her  rights  ;^^'  but  the  rule  has  also  been 
a23plied  in  the  case  of  another  person  joining  in  the 
execution  of  a  conveyance  which  does  not  name  him 
as  a  party."* ^  In  a  number  of  jurisdictions,  however, 
the  rule  referred  to  has  been  repudiated,  more  usually,*- 
but   not    exclusively,'*-^   in  connection   with   the   question 


40.  Agricultural  Bank  of  Miss- 
issippi V.  Rice,  4  How.  (U.  S.) 
22.5,  11  L.  Ed.  949;  Batchelor  v. 
Brereton,  112  U.  S.  396,  28  L. 
Ed.  748;  Harrison  v.  Simons, 
55  Ala.  510;  Cordano  v.  Wright. 
159  Cal.  610,  Ann.  Cas.  1912C, 
1044,  115  Pac.  227;  Cox  v.  Wells, 
7  Blackf.  (Ind.)  410,  43  Am. 
Dec.  98;  Prather  v.  McDowell,  8 
Bush  (Ky.)  46;  Beverly  v.  Wal- 
ler, 115  Ky.  600,  103  Am.  St.  Rep. 
342,  74  S.  W.  264;  Payne  v. 
Parker,  10  Me.,  178,  25  Am.  Dec. 
221;  Stevens  v.  Owen,  25  Me.,  94; 
Lothrop  V.  Foster,  51  Me.  367; 
Catlin  V.  Ware,  9  Mass.  218,  6 
Am.  Dec.  56;  Leavitt  v.  Lamprey. 
13  Pick.  (Mass.)  382,  23  Am.  Dec. 
685;  Greenough  v.  Turner.  11 
Gray  (Mass.)  334  Merrill  v. 
Nelson,  18  Minn.  366;  Stone  v. 
Sledge,  87  Tex.  49,  47  Am.  St. 
Rep.  65,  26  S.  W.  1068;  Laugh- 
lin  V.  Fream.  14  W.  Va.  322. 

41.  Harrison     v.     Simons,     55 
Ala.   510;    Parsons  v.  Justice,   163 
Ky.  737,  174  S.-W.  725;    (Compare 
Hargis   v.   Ditmore.   8fi   Ky.    653, 
7  S.  W.  141);   Peabody  v.  Hewitt. 


52  Me.  33,  83  Am.  Dec.  486;  Marx 
&  Sons  v.  Jordan,  84  Miss.  334, 
105  Am.  St.  Rep.  457,  36  So. 
386;  See  Batchelor  v.  Brereton, 
112  U.  S.  396.  28  L.  Ed.  748; 
Stone  V.  Sledge.  87  Tex.  49,  47 
Am.   St.  Rep.  65,  26  S.  W.  1068. 

42.  Ingoldsby  v.  Juan,  12  Cal. 
564;  Johnson  v.  Montgomery,  51 
111.  185;  Armstrong  v.  Stovall,  26 
Miss.  275;  Elliot  v.  Sleeper,  2  N. 
H.  525;  Burge  v.  Smith,  27  N 
H.  332;  Woodward  v  Leaver. 
38  N.  H.  29.  And  see  Isler  v. 
Isler,   110  Miss.   419,   70  So.   455. 

A  husband's  authentication  of 
his  wife's  deed  by  his  joinder  in 
the  execution,  has  occasionally 
been  regarded  as  suflBcient  under 
the  statute,  though  he  was  not 
named  in  the  instrument.  Dentzel 
V.  Waldie,  30  Cal.  138;  Pease  v. 
Bridge,  49   Conn.   58. 

43.  Sterling  v.  Park,  129  Ga. 
309,  13  L.  R.  A.  (N.  S.)  298, 
121  Am.  St.  Rep.  224,  12  A.  & 
E.  Ann.  Cas.  201,  58  S.  E.  828; 
Hrouska  v.  Janke,  66  Wis.  252, 
28  N.  W.  166.  See  Hargis  v. 
Ditmore,  86  Ky.  653,  7  S.  W.  141. 


§  434]  Transfer  Inter  Vivos.  15D.3 

of  the  release  of  dower,  it  being  considered  that  the 
signature  alone  serves  not  only  to  identify  the  signer 
as  a  grantor  in  the  conveyance,  but  also  to  indicate 
an  intention  to  join  therein  for  the  i)urpose  of  passing 
his  or  her  interest.  The  requirement  that  the  grantor's 
name  be  inserted  appears,  as  is  suggested  in  some  of 
the  cases  last  cited,  to  have  been  based  on  the  necessity 
of  having  some  means  for  his  identification,^^''  at  a 
time  when  but  few  people  wrote,  and  a  writing  was 
ordinarily  authenticated  by  sealing  alone. 

The  grantee  or  grantees  must  be  named  in  the 
conveyance,  or  means  for  their  identification  furnished 
thereby.^^  It  does  not  affect  the  validity  of  the  con- 
veyance that  the  name  of  the  grantee,  as  inserted  there- 
in, is  not  that  ordinarily  borne  by  him,  but  one  given 
to  or  assumed  by  him  for  the  occasion  is  sufficient.'*^ 
A  conveyance  however  to  an  absolutely  fictitious  per- 
son is  a  nullity.^^ 

A  conveyance  to  a  person  deceased  is  a  nullity,'* "'^ 
and  a  conveyance  to  the  "estate"  of  one  deceased  has 

43a.     Perkins,    Conveyancing.    §  77    Am.    Dec.    640;     Chapman    v. 

36;    Sheppard's  Touchstone,   233.  Tyson,     39     Wash.     523,     81     Pac. 

44.  Wood  V.  Boyd,  28  Ark.  75;  1066;  Staak  v.  Sigelkow,  12  Wis. 
Wunderlin  v.  Cadogan,  50  Cal.  234.  But  in  Barr  v.  Schroeder, 
613..  McGrew  v.  Lamb,  60  Colo,  32  Cal.  609  it  appears  to  be  as- 
462,  154  Pac.  91;  Simmons  v.  sumed  that  a  mistake  in  the 
Spratt,  20  Fla.,  495;  Chase  v.  grantee's  name  invalidated  the 
Palmer,    29    111.    306;     Clarke    v.  conveyance. 

Butts,    73    Minn.    361,    76    N.    W.  46.     David  v.  Williamsburg  Fire 

199;    Henniges   v.    Paschke,    9    N.  Ins.    Co.,    83    N.    Y.    265,    38    Am. 

D.   489,    81   Am.    St.   Rep.    588,    84  Rep.      418;      Muskingum      Valley 

N.    W.    350;     Hardin    v.    Hardin,  Turnpike    Co.    v.    Ward,    13    Ohio 

32  S.  C.  599,  11  S.  E.  102;    Lund  120,    42    Am.    Dec.    191;    Weihl   v. 

v.    Thackery,    18    S.    Dak.    113,   99  Robertson,    97    Tenn.    458,    37    S. 

N.  W.   856;    Wright  v.   Lancaster,  W.    274. 

48  Tex.  250.  47.     Lewis    v.    McGee    1    H.    K. 

45.  Wilson  v.  White,  84  Cal.  Marsh.  (Ky.)  199;  Hunter  v. 
239,  24  Pac.  114;  Scanlan  v.  Watson,  12  Cal.  363,  73  Am.  Dec. 
Grimmer,  71  Minn.  351,  70  Am.  543;  Morgan  v.  Hazlehurst  Lodge, 
St.  Rep.  326,  74  N.  W.  146;  53  Miss.  G65;  Neal  v.  Nelson,  117 
Thomas    v.    Wyatt,    31    Mo.    188,  N.    C.   393,   53   Am.   St.    Rep.    590. 


1594 


Real  Property. 


[§  43-1 


likewise  been  so  regarded,^ ^  A  conveyance  to  the  "heirs" 
of  one  deceased  is  valid,  since  their  identity  is  capable 
of  immediate  establishment.^^ 

It  is  immaterial  in  what  part  of  the  conveyance 
the  grantee's  name  or  identity  is  made  to  appear,^^^ 
but  if  a  person  is  named  as  grantee  in  the  premises, 
another  person  not  named  therein,  but  named  in  the 
habendum,  cannot  take  an  estate  under  the  conveyance 
otherwise  than  by  way  of  remainder.^! 

Uncertain  grantee.     Occasionally  a  conveyance 


is  made  in  terms  to  the  heirs  of  a  particular  person, 
which  person  is  still  alive.  There  is  obviously  no 
room  for  objection  to  the  validity  of  such  a  conveyance 


23  S.  E.  428.  But  when  a  con- 
sideration is  paid,  an  equity  has 
occasionally  been  recognized  as 
existing  in  favor  of  the  heirs. 
Hutto  V.  Hutto,  66  Fla.  504,  63 
So.;  Johnson  v.  John  L.  Roper 
Lumber  Co.,  168  N.  C.  226,  84  S. 
E.    289. 

In  City  Bank  v.  Plank,  141 
Wis.  653,  it  was  held  that  a  con- 
veyance in  terms  to  a  person  de- 
ceased was  valid,  on  the  theory 
that  by  the  use  of  the  name  of 
deceased  it  was  intended  to 
designate  his  executor,  the  in- 
ference being  very  strong  that 
when  the  parties  to  a  transaction 
know  that  a  person  named  is 
dead,  they  intend,  in  using  his 
name,  to  designate  a  living  per- 
son.. 

48.  Simmons  v.  Spratt,  20  Fla. 
495,  8  So.  123;  Mclnerney  v. 
Beck,  10  Wash.  515,  39  Pac.  130, 
But  see  Arnett  v.  Fairmont  Trust 
Co.,  70  W.  Va.  296,  73  S.  E. 
930,  where  a  bequest  to  the 
"estate"  of  one  deceased  was 
regarded  as  passing  the  property 
to  the  personal  representative. 


49.  Shaw  V.  Loud,  12  MasS. 
447;  Hoover  v.  Malen,  83  Ind. 
195;  Boone  v.  Moore,  14  Mo. 
421;  Gearheart  v.  Tharp,  9  B. 
Mon.     (Ky.)    31. 

50.  Spyve  v.  Topham,  3  East 
115;  Richey  v.  Sinclair,  167  111. 
184,  47  N.  E.  364;  Berry  v.  Bil- 
lings, 44  Me.  416,  69  Am.  Dec. 
107;  Bay  v.  Posner,  78  Md.  42; 
Irwin  V.  Longworth,  20  Ohio,  581; 
Henniges  v.  Paschke,  9  N.  Dak. 
489,  81  Am.  St.  Rep.  588;  Co. 
Litt.  7a;  Sheppard's  Touchstone, 
75;   2  Preston,  Conveyancing,  435. 

51.  Norton,  Deeds,  287;  Shep- 
pard's Touchstone  (Preston's  Ed.) 
237;  Samme's  Case,  13  Coke,  54; 
Hiisted  V.  Rollins,  Iowa,  137  N. 
W.  462,  42  L.  R.  A.  (N.  S.)  379: 
Blair  v.  Osborne,  84  N.  C.  417; 
Moore  v.  City  of  Waco,  85  Tex. 
206;  Adams  v.  Dunklee,  19  Vt. 
382;  Cox  v.  Douglass,  20  W.  Va. 
175;  Weekly  v.  Weekly,  W.  Va. 
83,  S.  E.  1005.  Contra,  to  the 
effect  that  one  not  named  in 
premises  may  take  otherwise  than 
by  way  of  remainder,  see  Mc- 
Leod  V.  Tarrant,  39  S.  C.  271,  17 


§  434]  Transfer  Inter  Vivos.  1595 

if  the  word  ''heirs"  is  in  the  particular  case  intended 
as  a  designation  of  ascertained  persons,  the  living 
children,  for  instance,  of  the  person  named. ^-  But 
it  has  been  decided  in  a  number  of  cases  that  if  the 
word  "heirs"  is  in  such  case  used  in  its  technical 
sense,  and  the  attempted  conveyance  to  the  heirs  is 
not  by  way  of  remainder,  it  is  invalid  for  lack  of 
any  ascertained  grantee.^^  And  it  has  been  decided 
that,  for  the  same  reason,  a  conveyance,  not  by  way  of 
remainder,  to  unborn  children  of  a  particular  person, 
is  invalid.^*  The  validity  of  such  a  conveyance  when 
by  w^ay  of  contingent  remainder,  has  on  the  other 
hand  been  freely  recognized.^-^ 

At  common  law,  that  is,  before  the  Statute  of 
Uses,  such  a  conveyance  to  persons  not  ascertained  or 
not  in  being  was  valid  only  if  by  way  of  contingent 
remainder,  since  otherwise  there  was  no  person  to 
whom  the  livery  of  seisin  could  be  made,^*'  and  this 
distinction  between  a  conveyance  by  way  of  remainder 
and  not  by  way  of  remainder  was  applied  even  in  the 

S.  E.   773    (Mclver,  C.  J.   dissent-  Ga.    210,    84    Am.    St.    Rep.    233, 

ing).  38    S.    E.    827;     Faloon    v.    Sim- 

52.  Tharp  v.  Yarbrough.  79  Ga.  shauser,  130  111.  649,  22  N.  E. 
382,  11  Am.  St.  Rep.  439;  Sey-  835;  Morris  v.  Caudle,  178  111. 
mour  V.  Bowles,  172  111.  520.  50  9,  44  L.  R.  A.  489,  69  Am.  St. 
N.  E.  122;  Tinder  v.  Tinder,  131  Rep.  282,  52  N.  E.  1036;  Miller 
Ind.  381,  30  N.  E.  1077;  Heath  v.  McAlister,  197  111.  72  64  N. 
V.  Hewitt,  127  N.  Y.  166;  13  L.  E.  254;  Dupree  v.  Dupree,  45  N. 
R.  A.  46,  24  Am.  St.  Rep.  438;  C.  164,  59  Am.  Dec.  590;  Newsom 
Huss  V.  Stephens,  51  Pa.  St.  282;  v.  Thompson,  2  Ired.  L.  (24  N. 
Robertson  v.  Wampler,  104  Va.  Car.)  277;  Lillard  v.  Ruckers,  9 
380,   51   S.   E.    835.  Yerg.    (Tenn.)    64. 

53.  Duffield  v.  Duffield  268  111.  55.  Co.  Litt,  378a;  Norton. 
29,  108  N.  E.  673;  Tinder  v.  Tin-  Deeds,  319;  Boraston's  Case,  3 
der,  131  Ind.  381,  30  N.  E.  1077;  Co.  Rep.  20a;  Sharman  v.  Jack- 
Booker  V.  Tarwater,  138  Ind.  .'!85,  son,  30  Ga.  224;  Mudge  v.  Ham- 
37  N.  E.  979;  Hall  v.  Leonard.  1  mill,  21  R.  I.  283,  79  Am.  St.  Rep. 
Pick.  (Mass.)  27;  Morris  v.  Ste-  802,  43  Atl.  544.  See  cases  cited 
phens,    46    Pa.    St.    200.      But    see  mite,    §    136    (b). 

Bailey  v.  Willis.  56  Tex.  212.  56.     Ante,   §   156. 

54.  Davis  v.  Hollingsworth,  113 


1596  Eeal  Propeety.  [§  434 

case  of  a  conveyance  by  grant,"*^  in  analogy,  presumably, 
to  the  case  of  a  conveyance  by  livery,  since  there  was 
nothing  in  the  nature  of  a  common4a,w  grant  to  sug- 
gest such  a  distinction.  Consequently  the  modern  de- 
cisions, in  recognizing  this  distinction,  are  supported 
by  the  common  law  authorities.  It  is  somewhat  dif- 
ficult, however,  to  see  why  the  validity  of  a  conveyance 
in  favor  of  the  heirs  or  unborn  children  of  A  should, 
at  the  present  day,  be  dependent  on  whether,  by  the 
same  instrument,  a  particular  estate  is  created  in  favor 
of  B ;  and  such  a  conveyance  might,  it  is  submitted, 
well  be  sustained,  without  any  particular  estate,  as 
creating  an  executory  interest,  valid  by  force  of  the 
Statute  of  Uses,  or  local  state  statute,^^  to  mature  into 
an  estate  upon  the  ascertainment  or  coming  into  exis- 
tence of  the  grantees  named.  A  devise  to  unascertained 
or  non  existent  persons,  if  not  offending  the  Rule 
against  Perpetuities,  is  perfectly  valid,^'-^  and  there 
would  appear  to  be  no  sufficient  reason  for  applying 
a  different  rule  in  this  regard  to  a  conveyance  inter 
vivos.  The  language  of  some  of  the  cases,  above  cited, 
would  seem  to  suggest  that  the  asserted  invalidity  of  a 
conveyance  to  unascertained  or  non  existent  persons  is 
based  on  the  theory  that  a  conveyance  by  deed  is 
necessarily  a  bilateral  transaction,  and  that  conse- 
quently the  grantee  must  be  in  existence  at  the  time  of 
the  delivery  of  the  instrument  in  order  that  there  be 
an  acceptance  thereof.'"'  Even  the  courts,  however, 
which  i)rofess  to  recognize  the  necessity  of  the  ac- 
ceptance of  a  conveyance,  in  etfect  admit  that  a  con- 
veyance is  perfectly  valid  although  the  grantee  is 
an  infant,  mentally  and  legally  incapable  of  acceptance,*''^ 
and  if  the  impossibility  of  acceptance  dispenses  mth 
its  necessity  when   such  impossibility  arises  from  per- 

57.  Perkins,  §§  52,  53;  Shep-  59.  Atife,  §  160. 
pard's  Touchstone,  235;  Bacon's  60.  Post.  §  463. 
Abridgment,   Grant    (C).  61.  Post,  §  463,   note  18. 

58.  Ante,  §§  156-158. 


§  434]  Transfer  Inter  Vivos.  1597 

soiial  incapacity,  such  impossibility  might  well  have 
the  same  effect  when  arising  from  the  uncertainty  or 
non  existence  of  the  person  whose  acceptance  is  other- 
wise  required. 

A  conveyance  to  a  corporation  not  yet  formed  has 
been  regarded  as  invalid  for  lack  of  an  existent  and 
ascertained  gTantee.*^^  But,  it  is  submitted,  such  a 
conveyance  might,  apart  from  the  Rule  against  Per- 
petuities, be  supported  as  creating  an  executory  in- 
terest, to  become  vested  upon  the  formation  of  the 
corporation.  In  so  far,  however,  as  the  conveyance 
might  be  intended  to  operate  in  favor  of  a  corporation 
to  be  formed  at  a  future  time,  however  remote,  it  would 
be   invalid   under   the   Eule    against   Perpetuities. 

A  conveyance  to  the  inhabitants  of  a  certain  dis- 
trict or  municipal  division  has  been  regarded  as  in- 
valid, on  the  ground  that  there  is  a  lack  of  reasonable 
certainty  in  the  grantee,*^^  and  a  like  view  has  been 
taken  of  a  conveyance  to  the  owners  of  the  building 
adjoining  the  land  conveyed  on  the  west  side  thereof."^ 

Neme  of  grantee  left  blank.     At  the  common 


law,  a  deed,  that  is,  an  instrument  under  seal,  if  de- 
livered with  a  blank  therein  as  to  an  essential  part,  is 
void,  although  this  blank  be  afterwards  tilled  by  one 
having  parol  authority  from  the  maker  of  the  deed  so 
to  do;  this  conclusion  being  ordinarily  based  on  the 
theory  tliat  an  authority  to  execute  and  deliver  an 
instrument  under  seal  must  itself  be  under  seal.''^ 
Applying  the  rule  referred  to,  it  has  been  held,  in 
several  states,  tliat  a  conveyance  under  seal,  which  is 

62.  Phelan    v.    San    Francisco,       52    Atl.    1042;    Co.    Litt.    3a. 

6  Cal.  531;  Harriman  v.  Southam,  64.     Schaidt    v.    Blaul,    66    Md. 

16  Ind.   190;    Douthitt  v.  Stinson,  141,  6  Atl.   669. 

63   Mo.   268;    Utah  Optical   Co.  v.  65.     Sheppard's  Touchstone,  54; 

Keith,    18    Utah,    464;    RusseH    v.  Comyn's  Dig.  "Fait"   (A  1);   Hib- 

Topping     5     McLean,     194,     Fed.  blewhite    v.     McMorine,    6    Mee.s. 

Cas.    12163.  &   W.   200, 

63.  Hunt   V.   Tolles,   75   Vt.    48, 

R.  P.— 26. 


1598 


Real  Property. 


[^  434 


sought  to  be  delivered  with  the  name  of  the  grantee 
left  blank,  is  invalid,  although  the  blank  is  afterwards 
filled  up  by  another  person  acting  under  authority  from 
the  gTantor,  if  that  authority  was  not  under  seal.^^ 
In  other  states,  it  has  been  held,  without  reference  to 
the  question  of  a  seal,  that  an  authority  subsequently 
to  insert  the  grantee's  name  must  be  in  writing.'^"  In 
still  other  states  there  are  decisions  to  the  effect  that 
the  name  of  the  grantee,  if  left  blank,  may  be  inserted 
under  an  oral  authority,  or  an  authority  merely  in- 
ferred from  the  circumstances  of  the  case,^*  these  de- 


66.  Ingram  v.  Little,  14  Ga. 
173,  58  Am.  Dec.  549;  Burns  v. 
Lynde,  6  Allen  (Mass.)  305; 
Macurda  v.  Fuller,  225  Mass.  341, 
114  N.  E.  366;  Davemport  v. 
Sleight,  19  N.  C.  381;  Rollins  v. 
Ebbs,  137  N.  C.  355,  2  Ann.  Cas. 
327,  49  S.  E.  341;  Preston  v. 
Hull,  23  Gratt.    (Va.)    600. 

67.  Adamson  v.  Hartman,  40 
Ark.  58;  Upton  v.  Archer,  41  Cal. 
85,  10  Am.  Rep.  266;  Whitaker 
V.  Miller,  83  111.  381;  Mickey  v. 
Barten,  194  111.  446,  62  N.  E. 
802;  Ayres  v.  Probasco,  14  Kan. 
175;  Lund  v.  Thackery,  18  S. 
D.  113,  99  N.  W.  856.  See  Lind- 
sley  V.  Lamb,   34  Mich.   509. 

68.  Swartz  v.  Ballou,  47  Iowa, 
188,  29  Am.  Rep.  470;  Hall  v. 
Kary,  133  Iowa  465,  119  Am.  St. 
Rep.  639,  110  N.  W.  930;  Bank 
V.  Fleming,  63  Kan.  139,  65  Pac. 
213;  Guthrie  v.  Field,  85  Kan. 
58,  37  L.  R.  A.  (N.  S.)  326,  116 
Pac.  217  (dictum) ;  Inhabitants 
of  South  Berwick  v.  Huntress, 
53  Me.  90;  Board  of  Education  of 
Minneapolis  v.  Hughes,  118  Minn. 
404,  41  L.  R.  A.  (N.  S.)  637,  136 
N.  W.  1095;  Field  v.  Stagg,  52 
Mo.  534,  14  Am.  Rep.  435;  Thum- 
mel    V.    Holden,    149    Mo.    677,    51 


S.  W.  404;  Hemmenway  v.  Mu- 
lock,  56  How.  Pr.  (N.  Y.)  38; 
Cribben  v.  Deal,  21  Ore  211,  28 
Am.  St.  Rep.  746,  27  Pac.  1046; 
Threadgill  v.  Butler,  60  Tex.  599; 
Clemmons  v.  McGeer,  63  Wash. 
446,  115  Pac.  1081;  Lafferty  v. 
Lafferty,  42  W.  Va.  783,  26  S.  E. 
262;  Schintz  v.  McManamy,  33 
Wis.  299;  Friend  v.  Yahr,  126 
Wis.  291  1  L.  R.  A.  (N.  S.)  891, 
110  Am.  St.  Rep.  924,  104  N.  W. 
997 

The  tendency  is  to  presume 
authority  for  this  purpose  in 
the  person  to  whom  the  instru- 
ment is  handed  by  the  grantor. 
Creveling  v.  Banta,  138  Iowa.  47. 
115  N.  W.  598;  Barras  v.  Barras, 
191  Mich.  473,  158  N.  W.  192; 
Board  of  Education  v.  Hughes, 
118  Minn.  404,  41  L.  R.  A.  (N. 
S.)  637,  136  N.  W.  1095;  Mont- 
gomery V.  Dresher,  90  Neb.  632, 
38  L.  R.  A.  (N.  S.)  423,  134 
N.  W.  251;  Lamar  v.  Simpson,  1 
Rich.  Eq.  (S.  C.)  71,  42  Am. 
Dec.  345;  Clemmons  v.  McGeer, 
63  Wash.  446,  115  Pac.  1081; 
Friend  v.  Yahr  126  WMs.  291,  104 
N.  W.  997,  1  L.  R.  A.  (N.  S.) 
891,  110  Am.  St.  Rep.  924,  104  N. 
W.  997. 


434]  Transfer  Inter  Vivos.  1599 

cisions  ordinarih^  referring  to  the  common  law  re- 
quirement of  an  authority  under  seal  as  technical  and 
unreasonable.  These  decisions  do  not  howev.er  meet 
the  difficulty  presented  by  the  statutes  in  force  in  a 
number  of  states  requiring  a  conveyance  to  be  signed 
by  the  grantor  or  by  an  agent  "authorized  in  writing." 
In  the  presence  of  such  a  statute  it  is  difficult  to  under- 
stand how  such  an  essential  part  of  the  conveyance 
as  the  designation  of  the  grantee  can  be  the  act  of  an 
agent  without  written  authority.  And  especially  is  this 
the  case  when  the  oral  authority  is  one  to  insert,  not 
the  particular  name  which  was  inserted,  but  any  name 
w^hich  it  might  thereafter  become  desirable  to  insert. 
Nor  do  these  decisions  appear  to  meet  the  difficulty, 
hereafter  referred  to,^^  arising  from  the  requirement 
of  delivery. 

In  case  one  to  whom  the  instrument  is  entrusted, 
with  authority  to  insert  the  name  of  the  grantee,  in- 
serts such  name  and  then  hands  the  completed  instru- 
ment to  the  grantee  named,  the  question  arises,  when, 
if  ever,  is  the  instrument  to  be  regarded  as  having  been 
delivered.  Was  delivery  effected  by  the  action  of 
the  grantor  in  handing  the  instrument  to  the  agent, 
or  was  it  effected  by  the  action  of  the  agent  in  handling 

When  the  instrument  must  be  Simms  v.  Hervey,  19  Iowa,  273, 
executed  by  the  grantor,  and  297,  if  this  rule  were  adopted 
cannot  be  executed  through  an  has  transpired,  and  deeds  or 
agent,  as  in  some  states  is  the  mortgages  to  land  are  now  "float- 
case  In  a  conveyance  by  a  mar-  ed"  almost  as  readily  as  com- 
ried  woman,  blanks  in  the  con-  mercial  paper,  and  the  name  of 
veyance  cannot  be  filled  by  a  the  grantee  Inserted  when  it  (s'ic) 
third  person  acting  under  oral,  finds  an  owner  who  concluding 
or  even  sealed,  authority.  Drury  to  retain  the  land  elects  to  In- 
V.  Foster,  2  Wall.  (U.  S.)  24  17  sert  his  name  as  grantee.  The 
L.  Ed.  780.  practice,  while  not  conserving  a 
69.  Post,  §  461,  note  57.  single  laudable  purpose,  has  prov- 
In  Creveling  v.  Banta,  138  Iowa  en  an  efficient  help  in  the  per- 
47,  115  N.  W.  598,  Ladd,  C.  J.  petration  of  fraud  and  the  con- 
remarked  as  follows:  "What  was  cealment  of  property  from  the 
evidently  feared  by  Dillon  J.,   in  pursuit  of  creditors." 


1600  Real  Propeety.  [§  434 

the  instrument  to  the  grantee.  The  former  view  ap- 
pears to  be  excluded  by  the  difficulty  of  conceiving  of 
the  legal  delivery  as  a  conveyance  of  an  instrument 
which  lacks  the  name  of  a  grantee.  Such  an  instru- 
ment is  necessarily  incapable  of  legal  operation,  and 
to  assert  that  such  an  instrument  has  been  delivered, 
that  is,  that  an  intention  has  been  indicated  that  it  shall 
immediately  be  legally  operative/"  appears  to  involve  an 
al^solute  incompatibility  of  ideas.  In  accord  with  this  lat- 
ter view  are  the  occasional  decisions  or  judicial  statements 
that  the  grantee's  name  must  be  inserted  by  the  agent 
l^efore  he  "delivers"  the  instrument,  or  before  he  de- 
livers it  to  the  grantee,"^  ^  this  evidently  involving  the 
view  that  it  is  the  physical  transfer  by  the  agent,  and 
not  the  transfer  to  the  agent,  which  operates  as  de- 
livery. On  the  other  hand  there  are  decisions  that  an 
agent  to  whom  the  instrument  is  handed,  with  authority 
to  insert  such  name  as  he  may  choose  as  that  of  the 
grantee,  may  insert  his  own  name,  and  thereby  render 
the  instrument  operative  in  his  favor,"^  and  these 
do  not  accord  with  the  view  that  the  instrument  can- 
not be  delivered  until  the  grantee's  name  is  inserted, 

70.  Post.    §    461.  ual    transfer    of    the    instrument 

71.  Allen  v.  Withrow,  110  L.  to  the  agent  involves  in  effect 
S.  119,  28  L.  Ed.  90;  Osby  v.  a  delivery  conditioned  upon  the 
Reynolds,  260  111.  576,  103  N.  E.  filling  of  the  blank  (see  post,  § 
556;  Carr  v.  McColgan,  100  Md.  462),  so  that  the  instrument  is 
462,  476,  60  Atl.  606;  Derry  v.  to  be  regarded,  so  soon  as  the 
Fielder,  216  Mo.  176,  115  S.  W.  blank  is  filled,  as  having  been 
412;  Chauncey  v.  Arnold,  24  N.  delivered  at  the  time  of  such 
Y.  330;  Cribben  v.  Deal,  21  Ore.  transfer.  This  does  not,  how- 
211,  28  Am.  St.  Rep.  746,  27  Pac.  ever,  obviate  the  difficulty  in- 
1046;  Telschow  v.  Quiggle.  74  volved  in  the  idea  of  even  the 
Ore.  105,  145  Pac.  11;  Duncan  v.  conditional  delivery  of  a  con- 
Hodges,  4  McCord  (S.  C.)   239,  17  veyance    lacking    a   grantee. 

Am.   Dec.   734.     See   Lockwood  v.  72.     Burk  v.  Johnson,  146  Fed. 

Bassett,   49    Mich.    546,    14    N.   W.  209;    Augustine    v.    Schmitz,    145 

492.  Iowa    591,    124    N.    W.    607;    Ein- 

In     Halvorsen     v     Mullin,     179  stein    v.    Holladay-Koltz    Land    & 

Iowa    293.    156    N    W.    289,    the.  Lumber  Co.,  132  Mo.  App.  82,  111 

view   is  expressed   that  the   man-  S.  W.  859  . 


§  434]  Transfer  Inter  Vivos.  1 601 

or  with  the  view  that  the  delivery  is  to  be  regarded  as 
made  by  the  agent  on  behalf  of  the  grantor.  The  con- 
ception of  a  conveyance  becoming  operative  by  reason 
of  a  delivery  made  by  the  grantee  as  agent  of  the 
grantor  is  an  almost  impossible  one.  Furthermore,  if 
the  one  who  is  given  authority  to  fill  the  blank  is  also 
the  grantor's  agent  for  the  purpose  of  making  delivery 
of  the  instrument  when  completed,  he  should,  it  is 
submitted,  have  formal  written  authority  for  this 
purpose,  a  power  of  attorney,  as  it  is  ordinarily  termed, 
the  delivery  being  a  part  of  the  execution  of  the 
instrument.''''^ 

Even  though  a  merely  oral  authority  to  insert 
the  name  of  the  grantee,  and  to  make  delivery  of  the 
instrument  when  thus  completed,  be  regarded  as  in- 
sufficient, a  view  which,  though  not  in  accord  with  the 
weight  of  authority  in  this  country,  is  conceived  to 
be  the  sounder  on  principle,  nevertheless  an  instrument 
completed  and  delivered  under  such  an  insufficient 
authority  might  in  some  cases  be  supported  on  the 
theory  of  estoppel,  in  favor  eitlier  of  the  person  whose 
name  is  inserted  in  the  instrument,'^^  or  in  favor  of  a 
bona  fide  purchaser  from  him  for  value. '^^  One  claim- 
ing under  a  conveyance  has  frequently  no  means  of 
determining  whether  the  grantee's  name  was  inserted 
before  or  after  its  execution,  and  unless  he  is  to  be 
protected  on  the  principle  of  estoppel,  there  is  little 
safety  in  purchasing  property  in  any  jurisdiction  where 
the  validity  of  an  oral  authority  to  insei't  the  gi-antee's 
name  is  denied. 

73.  Post,  §  461,  notes  53-58.  v.   Wells,    15   Neb.   298,    18   N.   W. 

74.  Quinn  v.  Brown,  71  Iowa  132.  See  El  Dorado  Exchange 
376,  34  N.  W.  13;  McCleery  v.  Nat.  Bank  v.  Fleming,  63  Kan. 
Wakefield,  76  Iowa,  529,  2  L.  R.  139,  65  Pac.  213,  and  jwst,  this 
A.    529,    41    N.    W.    210;    State    v.  section,  note  77. 

Matthews,  44   Kan.   596,   10   L.   R.  75.     Swartz  v.  Ballou,  47  Iowa. 

A.    308,    25    Pac.    36;      Phelps    v.  Hall  v.  Kary,   133   Iowa,  468,   119 

Sullivan,    140    Mass.    36,    54    Am.  Am.  St.  Rep.  639,  110  N.  W.  930; 

Rep.   442,   2   N.   E.   121;    Pence   v.  Ragsdale    v.     Robinson,    48    Tex. 

Arbuckle,  22  Minn.  417;    Garland  379. 


1602  Real  Pboperty.  [§  434 

In  case  a  blank  as  to  the  name  of  the  grantee  is 
filled  by  a  person  who  has  no  authority  for  the  purpose, 
either  oral  or  in  writing,  or  it  is  filled  in  a  manner 
contrary  to  the  directions  of  the  grantor,  the  con- 
veyance is,  it  is  agreed,  invalid  as  regards  a  person 
who  is  aware  of  the  circumstances  of  the  transaction.''' 
As  regards  an  innocent  grantee  or  purchaser,  on  the 
other  hand,  it  might  frequently  be  valid,  on  the  ground 
of  estoppel'^^  provided  at  least  he  pays  value.'^^  If  the 
grantor  chooses  to  place  in  the  hands  of  another  person 
an  instrument  duly  signed  and  sealed  by  him,  but  which 
is  otherwise  in  an  incomplete  state,  and  such  other  ex- 
ceeds his  authority  in  making  the  instrument  apparently 
complete,  the  grantor,  and  not  an  innocent  purchaser, 
should  be  the  one  to  suffer  on  account  thereof.  The 
grantor  should  be  estopped,  in  such  case,  to  deny  that 
the  instrument  is  his  act  and  deed."^^ 

When  the  grantor,  instead  of  handing  the  blank 
instrument  to  another,  retains  it,  and  it  later  leaves 
his  custody  without  his  consent,  the  question  whether 
it  is  effective  in  the  hands  of  a  bona  fide  purchaser 
would  seem  to  depend  primarily  upon  whether  the  con- 

76.  Ayers  v.  Probasco,  14  Kan.  So.  425;  Vica  VaUey  &  C.  R.  v. 
175;  Arguello  v.  Bours,  67  Cal.  Mansfield,  84  Cal.  560,  24  Pac. 
447,  8  Pac.  49;  Lund  v.  Thackery,  145;  Whitaker  v.  MiUer,  83  111. 
18  S..  D.  113,  99  N.  W.  856;  381;  Thummel  v.  Holden,  149  Mo. 
Schintz  V.  McMenamy,  33  Wis.  677,  51  S.  W.  404;  Westlake  v. 
299.  Dunn,  184  Mass.  260,  100  Am.  St. 

77.  Creveling  v.  Banta,  138  Rep.  557,  68  N.  E.  212;  Tel- 
Iowa,  47,  115  N.  W.  598;  Augus-  schow  v.  Quiggle,  74  Ore.  105, 
tine  V.  Schmitz,  145  Iowa,  591,  145  Pac.  11;  Swan  v.  N.  B. 
124  N.  W.  617;  State  v.  Matthews,  Australian  Co.,  2  Hurlst.  &  Colt. 
44   Kan.   596,  10  L.  R,  A.   308,   25  175. 

Pac.     36;     Guthrie    v.     Field,     85  78.     In  Van  Dyke  y.  Van  Dyke, 

Kan.    58,    116    Pac.    217,   37   L.   R.  119  Ga.  47  S.  E.  192,  830,  in  which 

A.     (N.    S.)     326;     Pence    v.    Ar-  the   conveyance   was  regarded   as 

buckle,  22  Minn.  417;   Garland  v.  invalid     there    appears    to    have 

Wells,  15  Neb.  298,  18  N.  W.  132;  been   no   consideration  paid. 

Clemmons    v.    McGeer,    63    Wash.  79.     See    the    admirable    discus- 

446,     115     Pac.     1081.       But     see  sion   In   Ewart,   Estoppel,    449,   et 

Barden  v.  Grace,  167  Ala.  453,  52  seq.     But    the   cases    referred    to 


§  434]  Transfer  Intee  Vivos.  1603 

duct  of  the  grantor  was,  in  the  particular  case,  lacking 
in  reasonable  care.^° 

Substitution  of  other  grantee.     The   question 


of  the  validity  of  a  conveyance,  the  name  of  the  grantee 
in  which  was  inserted  after  it  left  the  grantor's  hands, 
in  a  space  left  blank  for  this  purpose,  was  discussed 
above. ^^  A  question  of  a  somewhat  analogous  nature 
concerns  the  validity  of  a  conveyance,  when  the  name 
of  the  grantee  was  inserted  after  delivery,  not  in  a 
space  originally  left  blank  for  the  purpose,  but  by 
way  of  substitution  for  another  name  which  appeared 
in  the  instrument  at  the  time  of  delivery.  Occasionally 
a  purchaser  of  land,  with  a  view  to  the  saving  of 
expense  and  trouble,  upon  reselling  the  land  to  another, 
merely  erases  his  own  name  and  inserts  that  of  the 
purchaser,  so  that,  when  the  instrument  is  re- 
corded, the  title  appears  to  have  passed 
direct  from  his  vendor  to  the  last  purchaser.  Such  an 
alteration,  even  if  made  with  the  consent  of  both  the 
grantor  and  grantee,  and  in  the  presence  of  both, 
cannot  operate,  it  would  seem,  to  divest  the  title 
vested  by  the  delivery  in  the  original  grantee,^^  and 
the  fact  that  the  grantor  purports  to  make  a  second 
delivery  after  the  alteration  cannot  well  change  the 
result.  To  divest  one's  title  to  land  something  more 
is  necessary  tlian  a  conveyance  by  his  grantor  to  a 
third  person.  It  has  been  said  that  if  the  original 
grantee  himself  procures  the  change  to  be  made  he 
cannot  thereafter   claim  title   in  hiniself,^^   but   this   is 

in   the  latter  portion    of   note   77  471,    9    Ann.    Cas.    481,    77    N.    E. 

st^pra    are    opposed    to    any    such  942;   Carr  v.  F'rye,  225  Mass.  531, 

notion    of   estoppel.  114  N.  E.  745. 

80.  See  4  Wigmore,  Evidence,  83.  Abbott  v.  Abbott,  189  111. 
§  2419;  Van  Amringe  v.  Morton  488,  82  Am.  St.  Rep.  472,  59  N. 
4  Whart.  (Pa.)  382;  Telschow  v.  E.  958.  The  statement  appears 
QHiiggle,  74  Ore.  105,  145  Par.  11.  to    have    been    uncalled    for,    as 

81.  Ante,  this  section,  notes  the  court  found  that  the  change 
65-80.  w^as    made    before    delivery. 

82.  Gibbs    v.    Potter,    166    Ind. 


1G04:  Real.  Property.  [§  435 

so,  it  is  submitted,  only  in  so  far  as  the  elements  of  an 
estoppel  are  present.^* 

The  substitution  of  another  name  as  that  of  the 
grantee,  without  the  grantor's  consent,  can  obviously 
not  operate  to  vest  title  in  the  person  whose  name 
is  so  substituted.'*''  One  conveying  to  A  cannot,  without 
his  consent,  be  made  to  convey  to  B.  And  likewise  the 
substitution  of  another  name  as  that  of  the  grantee, 
without  the  consent  of  the  original  grantee,  cannot 
have  such  an  effect,  of  divesting  the  title  of  the  origi- 
nal grantee.^" 

§  435.  Words  of  conveyance.  Though  particular 
words  are  appropriate  to  particular  classes  of  con- 
veyances, it  is  not  necessary  that  these  particular 
words  be  used,  and  the  conveyance  is  valid,  provided 
it  contains  any  words  signifying  an  intention  to  trans- 
fer the  land  or  the  grantor's  interest  therein.^"  The 
phrase  "give,  grant,  bargain,  and  sell"  is  frequently 
employed,  and  is  no  doubt  sufficient  for  any  class  of 
conveyance,  in  view  of  the  rule  before  referred  to,  that 
a  conveyance  will  be  upheld  if  possible,  though  it  can- 
not operate  as  intended.    It  is  necessary,  however,  that 

84.  See  Goodwin  v.  Norton,  87.  Shove  v.  Pincke,  5  Term. 
92    Me.    532,   43   Atl.    111.  R.    124;    Peters   v.    McLaren,    218 

85.  HoUis  V.  Harris,  96  Ala.  Fed.  410,  134  C.  C.  A.  198;  San 
288;  Wagle  v.  Iowa  State  Bank,  Francisco  &  0.  R.  Co.  v.  City 
Iowa  156  N.  W.  991;  Wilds  v.  of  Oakland,  43  CaL  502;  Yeager 
Bogan,  55  Ind.  331  (senible) ;  v.  Farnsworth,  163  Iowa,  537; 
Perry  v.  Hackney,  142  N.  C.  368,  145  N.  W.  87;  Howe  v.  Warnack. 
115  Am.  St.  Rep.  741,  9  Ann.  4  Bibb.  (Ky.)  234;  Gordon  v. 
Cas.  244,  55  S.  E.  289;  Goodwin  Haywood,  2  N.  H.  402;  Hutchins 
V.  Norton,  92  Me.  532.  43  Atl.  v.  Carleton,  19  N.  H.  487;  Jack- 
Ill  son  V.  Root,  18  Johns.  (N.  Y.)  60; 

86.  John  V.  Hatfield,  84  Ind.  Lynch  v.  Livingston,  6  N.  Y.  422; 
75  (semble);  HiU  v.  Nisbet,  58  Folk  v.  Varn,  9  Rich.  Eq.  (S.  C.) 
Ga.  586  (semble);  Clark  v.  Cress-  303;  Evenson  v.  Webster,  3  S. 
well,  112  Md.  339,  21  Ann.  Cas.  D.  382,  44  Am.  St.  Rep.  802,  53 
338,  76  Atl.  579;  Simpkins  v.  N.  W.  747;  Hanks  v.  Folsom,  11 
Windsor,     21    Ore.     382,    28    Pac.  Lea    (Tenn.)    555. 

72    (semMe). 


§  436]  Transfer  Inter  Vivos.  1605 

the  conveyance  contain  words  showing  an  intention  to 
transfer  the  grantor's  interest,®*  and  the  words  "sign 
over"*^  and  ''warrant  and  defend"  have  been  held 
to  be  insnfficient,'"^     as  have  the  words  "does  wilL""^  **- 

§  436.  Exceptions  and  reservaticns.  The  purpose 
and  effect  of  an  exception  in  a  conveyance  is  to  except 
or  exclude  from  the  operation  of  the  conveyance  some 
part  of  the  thing-  or  things  covered  by  the  general  words 
of  description  therein,  as  when  one  conveys  a  piece  of 
land,  excepting  a  certain  part  thereof,  or  the  houses 
thereon,  it  being  properly  always  a  thing  actually 
existent.*^^  A  reservation  in  a  conveyance,  as  defined 
by  the  common-law  writers,  is  a  clause  by  which  the 
grantor  of  the  land  creates,  in  favor  of  himself,  some 
new  thing  "issuing  out  of"  the  land,  and  not  previously 
in  existence,  such  as  a  rent,  or  some  other  service  of  a 
feudal  or  quasi  feudal  character.^"' 

The  expressions  "reserve"  and  "reservation"  have 
been  applied,  in  a  somewhat  untechnical  sense,  in  connec- 
tion   with    a    clause    in    a    conveyance    by    which    the 

88.  Webb  v.  MuUins,  78  Ala.  R.  Co.,  132  Iowa,  129,  109  N.  W. 
Ill;  BeU  V.  McDuffie,  71  Ga.  264;  453;  Brown  v.  Anderson,  88  Ky. 
Davis  V.  Davis,  43  Ind.  561;  577,  11  S.  W.  607:  Snoddy  v. 
Brown  v.  Manter,  21  N.  H.  528,  Bolen,  122  Mo.  479,  24  L.  R.  A. 
53  Am.  Dec.  223;  Weinrich  v.  507,  24  S.  W.  142 ;  25  S.  W.  932; 
Wolf,  24  W.  Va.  299;  Freuden-  Edwards  v.  Brusha,  18  Okla.  234. 
berger  Oil  Co.  v.  Simmons,  75  W.  90  Pac.  727.  See  Truett  v. 
Va.  337,  Ann.  Cas.  1918A  873,  83  Adams,  66  Cal.  218,  5  Pac.  96; 
S.   E.   995.  Brown  v.  Allen,  43  Me.  590;  King 

89.  McKinney  v.  Settles,  ;;1  v.  Wells,  94  N.  C.  344;  Woodcock 
Mo.   541.  V.   Estey,   43  Vt.   515. 

90.  Hummelman  v.  Mounts.  87  An  exception  in  a  covenant  of 
Ind.    178.  title   is  not  necessarily  an  excep- 

91-92.       Caldwell     v.     Caldwell,  tion   or    reservation    for    the   pur- 

140  Ga.  736  ,79   S.   E.  853.  poses    of    the    conveyance.      Wen- 

93.     Co.    Litt,    21a;     Sheppard's  dall    v.    FLsher.    187    Mass.    81,    72 

Touchstone,  77   et  seq.;    Washing-  N.  E.  322;  Towns  v.  Brown,  (Ky.) 

ton  Mills  Emery  Mfg.  Co.  v.  Com-  114    S.    W.    773. 
mercial    Fire    Ins.    Co.     (C.    C),  94.     Co.    Litt.    47a;     Sheppard's 

13   Fed.   646;    Spencer    v.   Wabash  Touchstone,    8();    Doe    d.    Douglas 


1606  Real  Property.  [§  436 

grantor  retains  a  power  of  disposition  over  the  land 
conveyed,^^  by  which  he  is  given  a  right  to  repurchase 
the  property j^*^  by  which  he  retains  the  right  to  re- 
cover damages  for  jiast  injuries  to  the  property  con- 
veyed,^" and  by  which  he  retains  a  limited  estate  in 
the  land,^^  and  perhaps  in  other  cases  of  stipulations 
in  behalf  of  the  grantor.  Such  cases  evidently  do  not 
fall  within  the  common-law  definition  of  a  reservation, 
but  the  use  of  the  expression  in  these  comiections 
is  highly  convenient,  and  appears,  in  the  ordinary 
case,  to  be  free  from  objection. 

As    creating    easement.      The    nature    of    an 

exception  and  of  a  reservation  being,  at  common  law, 
such  as  above  described,  neither  was  strictly  appropriate 
for  the  creation,  on  the  conveyance  of  land,  of  an 
easement  or  right  of  profit  in  the  land  in  favor  of  the 
grantor,  and,  accordingly,  the  English  courts  have  de- 
cided that  such  an  attempted  exception  or  reservation 
must  be  construed  as  a  grant  back  of  an  easement  by 
the  grantee  of  the  land.'^''  In  this  country,  however, 
a  different  view  has  been  taken,  and  such  a  right  has 
almost  invariably  been  regarded  as  the  proper  sub- 
ject of  a  reservation,^   and  sometimes  even  of  an  ex- 

V.  Lock,  3  Adol.  &  El.  743;    Dur-  436  Ann.  Cas.   1917B,  116,   149  N. 

ham    &    S.    Ry.    Co.    v.    Walker,  W.    613;     Vessey    v.    Dwyer,    116 

2    Q.    B.    940.  Minn.    245,    133    N.   W.    613;    Mer- 

95.  See  Varner  v.  Rice,  44  rill  v.  Publishers'  Paper  Co.  77 
Ark.  236;  Bouton  v.  Doty,  69  N.  H.  285;  90  Atl.  786;  In  re 
Conn.  531,  37  Atl.  1064;  Horn  v.  Dixon,  156  N.  C.  26,  72  S.  E.  71; 
Broyles,  (Tenn.  Ch.)  62  S.  W.  Rembert  v.  Vetoe,  89  S.  C.  198, 
297;    Van   Ohlen's   Appeal,   70   Pa.  71   S.   E.   959. 

57.  99.     Durham    &    S.    Ry.    Co.    v. 

96.  Saddler  v.  Taylor,  49  W.  Walker,  2  Q.  B.  940;  Wickham 
Va.   104,   38   S.  E.    583.  v.     Hawker,     7     M.     &     W.     63; 

97.  Richardson  v.  Palmer,  38  Corporation  of  London  v.  Riggs. 
N.     H.     212;      Shepard     v.     Man-  13    Ch.    Div.    798. 

hattan     Ry.    Co.    169    N.    Y.    160,  1.     Chappell    v.    New    York,    N. 

62   N.    E.    151;    Maurer   v.    F^ied-  H.    &    H.    R.    Co.,    62    Conn.    195. 

man,  197  N.  Y.  248,  90  N.  E.  814.  17    L.    R.    A.    420,    24    Atl.    997; 

98.  Wood   V.   Logue,   167   Iowa  Haggerty    v.    Lee,    50    N.    J.    Eq. 


<§  436]  Transfer  Inter  ^''Ivus.  16<^7 

ceptioii.-  The  view  that  a  right  of  use  or  profit  may 
be  created  by  reservation  seems  to  involve  but  a  slight 
extension  of  the  common  law  conception  of  a  reserva- 
tion, and  it  is  more  or  less  justified  by  the  fact  that  in 
this  country  the  conveyance  is  usually  executed  by  the 
grantor  alone,  so  that  the  effect  of  regarding  a  stipula- 
tion for  such  a  right  in  favor  of  the  grantor  as  a 
grant  back,  as  is  done  in  England,  would  usually  result 
in  rendering  it  invalid.  But  to  describe  such  a  stipu- 
lation as  an  exception  involves  a  complete  departure 
from  the  common  law  view  of  tht  nature  of  an  ex- 
ception, as  being  in  etfect  merely  a  part  of  the  descrip- 
tion of  what  is  conveyed. 

In  so  far  as  the  courts,  thus  recognize  the  pos- 
sibility of  utilizing  an  exception  as  well  as  a  reserva- 
tion for  the  purpose  of  creating  an  easement,  it  being 
conceded  that  the  particular  expression  used,  w^hether 
'' except"  or  "reserve"  has  little  weight  in  this  con- 
nection,^ it  was  to  be  anticipated  that  the  determination, 
in  any  particular  case,  whether  there  is  the  reservation 
of  an  easement,  or  the  exception  of  an  easement,  would 
be  attended  ^\^th  considerable  difficulty.  In  some  de- 
cisions, upon  the  assumption  that  the  word  *' heirs"  is 
necessary  for  the  creation  of  an  easement  in  perpetuity, 
if  it  is  by  means  of  a  reservation.  Mobile  not  necessary 
if  it  is  by  means  of  an  exception,^  the  absence  of  such 
word  has  been  regarded  as  showing  that  the  language 
used  in  the  particular  case  was  intended  to  operate 
as  an  exception  and  not  a  reservation,^  a  view  which 

464,  26  Atl.  537;  Claflin  v.  Boston  Clafiin    v.    Boston    &    A.    R.    Co., 

&   A.    R,    Co.,    157    Mass.    489,    20  157    Mass.    489,    20   L.    R.    A.    63S, 

L.  R.  A.  638,  32  N.  E.  659;   Graf-  32  N.  E.  659;   Bridger  v.  Pierson, 

ton  V.  Moir,  130  N.  Y.  465,  27  Am.  45  N.  Y.  601.     See  ante,  §  362. 

St.     Rep.     533,     29     N.     E.     974;  3.     Post,    this    section,    note    8. 

Kister    v.    Reeser,    98    Pa.    St.    1,  4.     Ante,  §   362. 

42  Am.  Rep.  608.     See  cases  cited  5.     Winthrop    v.    Fairbanks,    41 

post,   this   section,    notes    5-8.  Me.    307;    Hall    v.    Hall,    106    Me. 

2.     Inhabitants  of  Winthrop   v.  389,    76    Atl.    705;     White    v.    N. 

Fairbanks,    41    Me.    307;    Ring    v.  Y.  &  N.  E.  R.  Co.,  156  Mass.  181. 

Walker.   87  Me.  550,  33  Atl.   174;  .",0    N.    E.    612;     Hamlin    v.    Kail- 


1608  Real  Propeety.  [§  436 

involves  an  imputation  of  intention  to  the  person  using 
the  words  which  is  seldom,  if  ever,  in  accord  with 
his  actual  intention.  Some  courts,  on  the  other  hand, 
regard  as  an  exception  a  clause  undertaking  to  create 
in  favor  of  the  grantor  of  the  land  an  easement  cor- 
responding to  a  preexisting  qi{asi  easement,  on  the 
theory  that  in  that  case  there  is  a  retention  by  the 
grantor  of  a  thing  actually  existent,  while  if  the  ease- 
ment sought  to  be  created  does  not  correspond  to  a 
preexisting  quasi  easement,  the  clause  is  to  be  regarded 
as  a  reservation,  as  undertaking  the  creation  of  a 
thing  not  before  existent/'  This  latter  distinction, 
though  ingenious  and  readily  capable  of  practical  ap- 
plication, appears  to  ba  without  any  foundation  in 
principle.  As  heretofore  explained,^  a  quasi  easement  is 
said  to  exist  when  the  owner  of  land  uses  part  of  his 
land  for  the  benefit  of  another  part,  but  this  is  merely 
a  form  of  expression,  and  a  quasi  easement  is  not  in 
itself  a  right  recognized  by  the  law.  One  uses  part 
of  his  land  for  the  benefit  of  another  part  by  right  of 
ownership,  and  not  by  reason  of  the  existence  of  a 
quasi  easement.  Consequently  an  "exception"  of  an 
easement  corresponding  to  a  preexisting  quasi  ease- 
ment involves  the  creation  of  a  new  and  distinct  legal 
right  to  the  same  extent  as  a  "reservation"  of  an 
easement  not  corresponding  to  a  use  previously  made 
of  the   land   conveyed. 

As  above  stated,  in  construing  language  creating, 
or  attempting  to  create,  rights  in  the  land  granted  in 
favor  of  the  grantor,  the  courts  ignore  the  terms 
used,  such  as  "except"  and  "reserve,"  and  ordinarily 
consider  it  to  constitute  an  exception  or  a  reservation, 
according  to  the  nature  of  the  rights  sought  to  be  cre- 

road    Co.,    160    Mass.    459,    36    N.  76    Atl.    705    (semble) ;    Claflin   v. 

E.     200;     Lipsky    v.    Heller,     199  Boston    &    M.    R.    R.,    157    Mass. 

Mass.  310,  85  N.  E.   453;    Smith's  401;    Foster   v.    Smith,    211   Mass. 

Ex'cr    V.    Jones,    86    Vt.    258.    84  411,  98  N.  E.  693;    Smith's  Execu- 

Atl.    866    (sem-ble).  v.   Jones,   86   Vt.   258,   84   Atl.   866. 
6.     Hall    V.    Hall,    106    Me.    389,  7.     Ante.    §    363    (b). 


§  436J 


Transfer  Inter  Vivos. 


1609 


ated.^  Accordingly,  applying  what  seems  the  proper 
distinction  between  an  exception  and  a  reservation, 
language  which  seeks  to  create  rights  in  favor  of  the 
grantor  in  a  certain  jDart  of  the  land  will  be  regarded 
as  constituting  a  reservation  or  an  exception,  according- 
ly as  an  easement  in  such  part  is  created,  or  the  owner- 
ship of  such  part  is  retained.^  And  in  case  the  con- 
veyance provides  that  the  grantor  shall  have  rights 
as  to  timber  on  the  land,  the  court  will  consider  merely 
whether  the  intention  is  that  the  grantor  shall  retain  the 
ownership  of  the  timber,  or  shall  have  only  a  right  to 
come  on  the  land  to  take  timber,  and  will  regard  the 
provision  as  an  exception  or  a  reservation  accordingly.^" 
And  a  stipulation  as  to  minerals  may  be  either  a  res- 
er^^ation  of  a  right  to  take  minerals,  or  an  exception 
of  the  minerals  in  place. ^^ 


8.  Webb  V.  Jones,  163  Ala. 
637,  50  So.  887;  Van  Slyke  v. 
Arrowhead  Reservoir  &  Power 
Co.,  155  Cal.  675,  102  Pac.  816; 
Zimmerman  v.  Kirchner,  151 
Iowa  483,  131  N.  W.  756;  IVTc- 
Intire  v.  Lauckner.  108  Me.  443, 
81  Atl.  784;  Claflin  v.  B.  &  A.  R. 
R  Co,  157  Mass.  489,  20  L.  R.  A. 
639,  32  N.  E.  659;  Martin  v. 
Cook,  102  Mich.  267,  60  N.  W. 
679;  Smith  v.  Furbush,  68  N.  H. 
123,  47  L.  R.  A.  226,  44  Atl.  398; 
Hagerty  v.  Lee,  54  N.  J.  L.  580, 
20  L.  R.  A.  631,  25  Atl.  319; 
Gill  V.  Fletcher,  74  Ohio  St. 
295,  113  Am.  St.  Rep.  962.  78 
N.  E.  433;  Riefler  &  Sons  v. 
Wayne  Storage  Water  Power  Co.. 
232  Pa.  282,  81  Atl.  300;  Coal 
Creek  Min.  Co.  v.  Heck,  15  Lea 
(Tenn.)  497;  Watkins  v.  Tucker, 
84  Texj  428,  19  S.  W.  570; 
Bradley  v.  Virginia  Ry.  &  Power 
Co.,  lis  Va.  233,  87  S.  E.  721: 
Stndebaker    v.    Beek,     83     Wash. 


260,   145  Pac.  225;    Jones  v.  Hoff- 
man,  149  Wis.  30  134  N.  W.  1046. 

9.  Barnes  v.  Burt,  38  Conn. 
541;  Wellman  v.  Churchill,  92 
Me.  193.  42  Atl.  352;  Winston 
V.  Johnson,  42  Minn.  398,  45 
N.  W.  958;  Jones  v.  De  Lassus, 
84  Mo.  541;  Langdon  v.  New 
York,  6  Abb.  N.  Cas.  314,  93  N. 
Y.  129;  Towne  v.  Salentine.  92 
Wis.  404,  66  N.  W.  395;  Prichard 
V.  Lewis,  125  Wis.  604,  1  L.  R. 
A,  (N.  S.)  565,  110  Am.  St. 
Rep.   873,   104   N.   W.   989. 

10.  Van  Slyke  v.  Arrowhead 
Reservoir  &  Power  Co)  155  Cal. 
675,  102  Pac.  816;  Knotts  v. 
Hydrick,  12  Rich.  L.  (S.  C.)  317; 
Rich  V.  Zeilsdorff,  22  Wis.  544, 
99   Am.    Dec.   81. 

11.  Gill  V.  Fletcher,  74  Ohio 
St.  295,  113  Am.  St.  Rep.  962, 
78  N.  E.  433:  Snoddy  v.  Bolen, 
122  Mo.  479,  24  L.  R.  A.  507. 
24  S.  W.  142,  25  S.  W.  932; 
Barrett   v.    Kansas   &  Texas   Coal 


IGIO 


IIeaLi  Pkoperty. 


[§  ^'iO 


Reservation  in  favor  of  third  person.  At  com- 
mon law  a  reservation  of  rent  cannot,  by  the  use  of 
particular  language,  be  made  to  operate  in  favor 
of  a  person  other  than  the  lessor  or  grantor.^^  This 
rule  has  been  said  to  be  based  on  the  consideration  that, 
since  the  rent  reserved  is  a  return  or  comi^ensation  for 
the  land  granted,  the  one  who  grants  the  land  is  the 
only  person  entitled  to  the  benefit  of  the  reservation, 
and  it  was  also  said  that  a  reservation  of  rent  in  favor 
of  a  stranger  would  involve  the  danger  of  mainte- 
nance.^^ A  like  view,  that  a  reservation  must  be  in 
favor  of  the  grantor,  has  been  asserted  in  connection 
with  the  reservation  of  an  easement  or  right  of  prof- 
it,^ ^  but  there  are  to  be  found  occasional  dicta  or 
decisions  to  the  effect  that  an  easement  may  be  re- 
served in  favor  of  a  person  other  than  the  g'rantor.^^ 


Co.,    70    Kan.    649,    79    Pac.    150; 
Preston  v.  White,  57  W.  Va.  278, 
50     S.     E.     236;     Whitaker     v. 
Brown,   46    Pa.    St.    197. 

12.  Litt.  §  346;  Co.  Litt.  143b, 
213b.  See  1  Tiffany,  Landlord 
&   Ten.,    §    170. 

13.  Gilbert,    Rents    54. 

14.  Washburn,  Easements  34; 
Jackson  v.  Snodgrass,  140  Ala. 
365,  37  So.  246;  Illinois  Central 
R.  Co.,  V.  Indiana  Cent.  R.  Co. 
85  111.  211;  Stone  v.  Stone,  141 
Iowa  438,  20  L.  R.  A.  (N.  S.) 
221,  18  Ann.  Cas.  799,  119  N.  W. 
712;  Beinlein  v.  Johns.  102  Ky. 
570,  44  S.  W.  128;  Herbert  v. 
Pue,  72  Md.  307,  20  Atl.  182; 
Murphy  v.  Lee,  144  Mass.  371,  11 
N.  E.  550;  Haverhill  Sav.  Bank  v. 
Griffin,  184  Mass.  419,  68  N. 
E.  839;  Borst  v.  Empie,  5  N.  Y. 
33;  Beardslee  v.  New  Berlin  L. 
&  P.  Co.,  207  N.  Y.  34,  100  N. 
E.  434;  Edwards  v.  Brusha,  18 
Okla.    234,    90    Pac.    727;    Young's 


Petition,  11  R.  I.  636;  Brace  v. 
Van  Eps,  21  S.  D.  65,  109  N. 
W.  147;  Strasson  v.  Montgomery, 
32    Wis.    52. 

15.  Lynch  v.  White,  85  Conn. 
545,  84  Atl.  326  (semile) ;  White- 
law  V.  Rodney,  212  Mo.  540,  111 
S.  W.  560;  Litchfield  v.  Boogher, 
238  Mo.  472,  142  S.  W.  302;  City 
Club  of  Auburn  v.  McGeer,  198 
N.  Y.  160,  91  N.  E.  539  (semble) ; 
Gibbons  v.  Ebding,  70  Ohio  St. 
298,  101  Am.  St.  Rep.  900,  71 
N.  E.  720;  Duross  v.  Singer,  224 
Pa.  573,  73  Atl  951.  See  Bark- 
hausen  v.  Chicago,  M.  &  St.  P. 
R.  Co.,  142  Wis.  292,  124  N.  W. 
649,    125   N.   W.    680. 

And  a  reservation  of  highway 
rights  in  favor  of  the  public  in 
no  way  a  party  to  the  convey- 
ance, has  been  assumed  to  be 
valid.  Sullivan  v.  Eddy,  154  111. 
199.  40  N.  E.  482;  Edwards  v. 
Brusha,  18  Okla.  234,  90  Pac. 
727;     Tuttle    v.    Walker,    46    Me. 


<^  436]  Transfer  Inter  Vwos.  1611 

If  one  conveying  laud  to  A  undertakes  by  the  same 
instrument  to  create  an  easement  in  the  land  in  favor 
of  B,  there  is,  it  would  appear,  not  a  reservation  of 
an  easement  in  favor  of  B  but  a  grant  thereof  to  him, 
that  is,  by  one  and  the  same  instrument,  the  grantor 
undertakes  to  convoy  land  to  one  person  and  an  ease- 
ment in  the  land  to  another.  To  this  there  would  seem 
to  be  no  objection  on  principle,  provided  the  execution 
by  him  of  the  instrument  is  such  as  is  required  for  the 
purpose  of  the  grant  of  an  easement,  and  provided 
further  the  courts  can  regard  the  words  of  reservation, 
as  they  do  words  of  covenant, '"^  as  equivalent  to  words 
of  grant  for  this  purpose,  which,  it  would  seem,  in 
order  to  effectuate  the  intention  of  the  parties,  they 
may  well  do.^'  It  can  liardly  be  questioned  that  a 
testator  might  create  an  easement  in  favor  of  one 
devisee  over  land  devised  to  another  by  words  of 
reservation,  as  well  as  by  words  of  grant. ^^ 

There  are  several  cases  to  the  effect  that  an  at- 
tempted reservation  in  favor  of  a  third  person  may 
indirectly  operate  in  his  favor  by  excluding  a  part  of 
the  land  from  the  operation  of  the  conveyance,  and 
so  preventing  the  transferee  from  asserting  any  rights 
therein  as  against  such  person, ^^  to  the  effect,  in  other 
words,  that  if  the  grantor  undertakes  to  reserve  an 
easement  in  favor  of  a  third  person  in  a  particular  part 
of  the  land,  that  part  of  the  land  is  excepted  from  the 
conveyance,   and  the  grantee  can  consequently  not  as- 

280.       See     Elliot     v.     Small,     35  Walker,   2   Q.   B.  940.     Ante,   this 

Minn.    396,    59    Am.   Rep.    329,    29  section,    note    99. 

N.    W.    158.  18.     There     was     no     question 

16.  Ante,    §    361.  suggested    as    to    the    validity    of 

17.  As  in  England  words  of  such  a  reservation  in  Wiley  v. 
reservation  of  an  easement  are  Ball,  72  W.  Va.  685,  79  S.  E. 
construed    as    operating    by    way  659. 

of    re-grant    from    the    transferee  19.     Bridger    v.    Pierson,    45    N. 

of    the    land.      See    Doe    v.    Lock,  Y.  601;   Bessom  v.  Freto,  13  Mek. 

2    Ad.    &    El.    743;     Wickham    v.  (Mass.)    523;    Hodge   v.    Boothby. 

Hawker   7    Mees.   &   W.   63;    Dur-  48    Me.    68;    Martin   v.    Cook,    102 

ham    &    Sunderland    Ry.    Co.    v.  Mich.  267,  60  N.  W.  679. 


1612  Real  Property.  [§  436 

sert  any  claim  thereto  as  against  such  third  person,  or 
any  other  person,  who  may  happen  to  be  utilizing  the 
land.  It  is,  nevertheless,  difficult  to  see  how  an  at- 
tempted reservation  of  an  easement  can  thus  take 
effect  as  an  exception,  how,  for  instance,  a  reservation 
of  a  right  of  way  thirty  feet  wide  in  favor  of  a  third 
person  can  be  regarded  as  an  exception  of  a  strip  of 
land  thirty  feet  wide.^-  Regarding  it  merely  as  a 
matter  of  construction,  such  a  view  would  seem  to 
violate  the  recognized  rule^^  that  words  of  exception 
or  reservation  are  to  be  construed  in  favor  of  the 
grantee  rather  than  of  the  grantor.  Apparently  op- 
posed to  the  cases  referred  to  are  several  decisions 
that  the  fact  that  the  grantor  in  a  conveyance  of  land 
undertakes  to  reserve  a  strip  of  the  land  in  favor  of 
the  public  for  use  as  a  highway  does  not  prevent  the 
''fee"  in  such  strip,  that  is,  the  ownership  thereof, 
from  passing  under  the  conveyance,-^'*  When  there  is 
in  terms  an  exception  or  reservation  of  an  easement 
in  favor  of  a  third  person,  which  easement  is  already 
existent,  the  exception  or  reservation,  so  called,  is  not 
effective  as  such,  since  the  rights  of  such  person  are 
independent  of  whether  the  owner  of  the  land  refers 
to  such  rights  in  his  conveyance  of  the  land.  Con- 
sequently the  statement,  occasionally  found,  that  the 
reservation    of    an    existing    easement    in    favor    of    a 

20.  In  Young  Petitioner,  11  Brown,— Ky.) — 114  S.  W.  773; 
R.  I.  636,  it  was  held  that  a  Massey  v.  Warren,  52  N.  C. 
clause  undertaking  to  vest  in  143;  Klaer  v.  Ridgway,  86  Pa. 
a   third    person    a    right    to    take  St.    529. 

timber    could    not    be    upheld    as  21a.     Sullivan  v.  Eddy,   154  111. 

an   exception,   and    was  void.  199,    40    N.    E.    482;    Edwards    v. 

21.  Wiley  v.  Sirdorus,  41  Brusha,  18  Okla.  234,  90  Pac. 
Iowa  224;  Wellman  v.  Churchill,  727;  Cincinnati  v.  Newell.  7 
92  Me.  193,  42  Atl.  352;  Derby  Ohio  St.  37;  Bolio  v.  Marvin,  130 
v.  Hall,  2  Gray  (Mass.)  236;  Mich.  82,  89  N.  W.  563;  Elliot 
Bolio  v.  Marvin.  130  Mich.  82,  v.  Small,  35  Minn.  396,  59  Am. 
89  N.  W.  563;  Duryea  v.  New  Rep.  329,  29  N.  W.  158;  Tuttle 
York,    62    N.    Y.    592;     Towns    v.  v.  Walker,  46  Me.  280. 


§  436]  Transfer  Ixter  Vivos.  1613 

third  person  constitutes  an  exception--  is,  it  is  sub- 
mitted, somewhat  lacking  in  accuracy.  In  so  far  as 
the  language  of  the  conveyance  may  be  construed  as  ex- 
cepting a  part  of  the  land,  when  there  was  previously 
merely  an  easement  in  a  third  person  in  such  part,^^ 
the  language  does  operate  as  an  exception,  but  it  does 
not  operate  in  favor  of  such  third  person,  since  he 
merely  retains  the  easement  which  he  previously  had. 
Likewise  the  langiiage  operates  as  an  exception  in 
favor  of  the  grantor  when  it  in  terms  excepts  an  as- 
certained part,  and  erroneously  states  that  such  part 
has  been  sold  or  conveyed  to  another.-^ 

As  above  stated,-*'^  the  language  of  reservation  is 
not  infrequently  employed  for  the  purpose  of  creating 
in  the  grantor  a  less  estate  than  that  conveyed,  as  when 
one  conveys  an  estate-  in  fee  simple  "reserving"  an 
estate  for  his  life.  Such  a  clause  is  not  a  reservation, 
according  to  the  common-law  conception  of  the  term, 
but  it  has  occasionally  been  referred  to  as  such  for  the 
purpose  of  the  general  rule  that  a  reservation  can 
operate  only  in  favor  of  the  grantor,  with  the  result 
that  in  a  conveyance  in  fee  simple,  for  instance,  an  at- 
tempted "reservation"  of  a  life  estate  in  favor  of  a 
member  of  the  grantor's  family  other  than  himself 
has  been  regarded  as  invalid.-^''     It  may  be  questioned, 

22.  Stockwell  v.  Coullard,  129  way) ;  Contra.  Derby  v.  HaU,  2 
Mass.  231;  Wood  v.  Boyd,  145  Gray  (Mass.)  236;  Gould  v. 
Mass.  176,  13  N.  E.  476;  State  Howe,  131  111.  490,  23  N.  E. 
V.  Wilson,  42  Me.  9;  Richardson  602;  Richardson  v.  Palmer,  38 
V.  Palmer,  38  N.  H.  212;  Brid-  N.  H.  212.  See  note  20  Harv.  Law 
ger    V.    Pierson,    45    N.    Y.    601;  Rev.   at   p.    574. 

Beardsley    v.    New    Berlin    Light  24.     Arabs    v.    Chicago,    St.    P., 

&   Power   Co.,    207    N.    Y.    34,    100  M.    &   O.    Ry.   Co.,    44    Minn.    266, 

N.    E.    434;    Bartlett    v.    Barrows,  46  N.  W.  321;    Roberts  v.  Robert- 

22  R.  I.  642,  49  Atl.  31.  son,    53    Vt.    690.      See    Stone    v. 

23.  Reynolds  v.  Gaertner,  117  Stone,  141  Iowa  438,  119  N.  W. 
Mich.  532;  HaU  v.  Wabash  R.  712,  20  L.  R.  A.  (N.  S.)  221,  18 
Co.,    133    Iowa    714,    110    N.    W.  Ann.  Cas.  797. 

1039;     Munn    v.    Worrall,     53    N.  24a.     Ante,     this    section,     note 

Y.    44;     Urascheid    v.    Scholz,    84  98. 

Tex.    265.    16    S.    W.    1065    (high-  24b.     White   v.  City  of  .Marion, 
2  R.  P.— 27 


1614 


Real,  Property. 


[§  436 


however,  Avhether  such  words  of  reservation  might  not 
occasionally  be  construed  as  words  of  grant,  vesting 
in  the  third  person  named  a  life  estate,  with  remainder 
in  fee  simple.  The  tendency  has  been  to  regard  such 
an  attempted  reservation  of  a  limited  estate  in  favor 
of  a  third  person  as  what  the  courts  denominate  an 
"excejition"  of  the  estate  named  in  favor  of  the 
grantor  himself.-'*^ 

Sufficiency  of  exception.     An  exception  must 


be  of  part  of  the  thing  granted,-^  and  must  not  be  as 
extensive  as  such  thing,  so  as  to  be  repugnant  thereto.^^ 
Nor  is  it  valid  if  the  subject  thereof  was  previously 
specifically  granted,  as  when,  after  granting  twenty 
houses,  one  of  such  houses  is  sought  to  be  excepted.-' 
There  may  be  an  exception,  as  before  indicated,  not 
only  of  a  particular  piece  of  land  measured  horizon- 
tally, but  also  of  houses  or  other  fixtures  on  the  land 
conveyed,-^  or  of  timber  growing  thereon,^^  or  of 
minerals  therein,-''" 


139  Iowa,  479,  117  N.  W.  254; 
Martin  v.  Cook,  102  Mich.  267,  60 
N.  W.  679;  Burchaid  v.  Walther, 
58  Neb.  539,  78  N.  W.  1061;  hi 
re  Dixon,  156  N.  C.  26,  72  S.  E. 
71. 

24c.  See  the  first  three  cases 
cited   in  last   preceding   note. 

25.  Sheppard's  Touchstone,  78; 
HaU  V.  Hall,  106  Me.  389,  76  Atl. 
705;  Moore  v.  Lord,  50  Miss. 
229;  Cornell  v.  Todd,  2  Denio 
(N.  Y.)    130. 

26.  Dorrell  v.  Collins  Cro. 
Eliz.  6;  Shoenberger  v.  Lyon,  7 
Watts  &  S.  C.  (Pa.)  184;  Young's 
Petition,  11  R.  I.  636;  Puckett  v. 
McDaniell.  96  Tex.  94,  70  S.  W. 
739.  See  Bassett  v.  Budlong,  77 
Mich.  338,  18  Am.  St.  Rep.  404, 
43  N.  W,  984;  Foster  v.  Runk, 
109  Pa.  St.  291,  58  Am.  Rep. 
720,    2    Atl.    25;     Koenigheim    v. 


Miles,   67   Tex.   113,   2    S.   W.   81; 
Adams  v.  Warner,  23  Vt.  395. 

27.  Sheppard's  Touchstone  78; 
4  Kent's  Comm.  468;  Sprague  v. 
Snow,  4  Pick.  (Mass.)  54. 

28.  Marshall  v.  Niles,  8  Conn. 
369;  Washington  Mills  Emery 
Mfg.  Co.  V.  Commercial  Fire  Ins. 
Co.  (C.  C.)  13  Fed.  Sep.  646;  San- 
born V.  Hoyt,  24  Me.  118  Ante 
§    273. 

It  has  been  said  however  that 
an  exception  of  a  house  will 
prima  facie  include  not  only  the 
house  but  the  land  under  it. 
Webster  v.  Potter,  105  Mass.  414. 

29.  Sheppard's  Touchstone,  78; 
Heflin  v.  Bingham,  56  Ala.  566, 
28  Am.  Rep.  776;  Howard  v. 
Lincoln,  13  Me.  122;  Putnam  v. 
Tuttle,  10  Gray  (Mass.)  48.  See 
ante,   §    261. 

30.  Snoddy   v.    Bolen,    122    Mo. 


§  43G] 


Tbansfer  Inter  Vivos. 


1615 


The  part  or  thing  excepted,  it  is  said,  must  be 
described  with  such  certainty  that  it  may  be  identified, 
and  an  exception  has  not  infrequently  been  held  to  be 
void  for  lack  of  such  certainty.'^  ^  But  this  requirement 
of  certainty  is,  by  a  number  of  cases,  subject  to  an 
important  qualification,  to  the  effect  that  there  is  suffi- 
cient certainty  if  the  exact  location  of  the  excepted  part 
is  left  to  the  election  of  the  grantor,^-  or,  it  seems,  is 
capable  of  subsequent  ascertainment  otherwise.^ '^  The 
effect  of  the  invalidity  of  an  exception  out  of  the  land 
conveyed,  by  reason  of  its  indefiniteness,  is  that  the 
whole  tract  passes  by  the  conveyance  as  if  no  exception 
had  been  attempted.^^ 


479,  24  S.  W.  142,  25  S.  W.  932; 
Sloan  V.  Lawrence  Furnace  Co., 
29  Ohio  St.  568;  Whitaker  v. 
Brown,  46  Pa.  St.  197.  See  ante 
§    253,  note  19. 

31.  Bromberg  v.  Smee,  130 
Ala.  601,  30  So.  483;  Mooney  v. 
Cooledge,  30  Ark.  640;  Nunnery 
V.  Ford,  92  Miss.  263,  45  Co.  722: 
Andrews  v.  Todd,  50  N.  H.  565; 
Den  d.  Waugh  v.  Richardson,  30 
N.  C.  470;  Stambaugh  v.  Holla- 
baugh,  10  Serg.  &  R.  (Pa.)  357; 
Butcher  v.  Creel's  Heirs,  9  Gratt. 
(Va.)  201;  Harding  v.  Jennings 
68  W.  Va.  354,  70  S.  E.  1. 

32.  Butler  v.  Gosling,  130  Cal. 
422,  62  Pac.  596;  Thruston  v. 
Masterson,  9  Dana  (Ky.)  228; 
Smith  V.  Furbush.  68  N.  H.  12.^1, 
47  L.  R.  A.  226,  44  Atl.  398; 
Dygert  v.  Matthews,  11  Wend.  (N 
Y.)  35;  DeRoach  v.  Clardy,  52 
Tex.  Civ.  App.  233,  113  S.  W. 
22;  Benn  v.  Hetcher,  81  Va.  25, 
59  Am.  Rep.  645.  Compare  Chap- 
man V.  Mill  Creek  Coal  and  Coke 
Co.,  54  W.  Va.  193.  46  S.  E.  262. 

Until  the  land  excepted  is  as- 
certained  by   the   election    of    the 


grantor,  the  parties  are  in  the 
position  of  tenants  in  common,  it 
has  been  said.  Smith  v.  Fur- 
bush,  68  N.  H.  123,  47  L.  R.  A. 
226,   44  Atl.   398. 

It  has  been  decided  in  England 
that  an  exception,  thus  to  be 
subsequently  ascertained  by  elec- 
tion, involved  an  attempt  to 
create  an  estate  in  futuro,  and 
might  consequently  be  invalid, 
under  the  Rule  against  Per- 
petuities, or  otherwise.  Savill 
Bros.,  Ltd.  V.  Bethell  (1902)  2 
Ch.  523. 

33.  Melton  v.  Monday,  64  N. 
Car.  295  (subsequent  survey) ; 
Ex  parte  Branch  72  N.  Car.  106; 
(homestead  to  be  set  off) ;  Lang- 
don  V.  New  York,  6  Abb.  N.  Cas. 
314,  93  N.  Y.  129  (street  to  be 
laid  out);  Consolidated  Ice  Co.  v. 
New  York,  166  N.  Y.  92,  59  N.  E. 
713   (street  to  be  laid  out). 

34.  Bromberg     v.     Smee.     130 
Ala.  601,  30  So.  483;    Swindall  v. 
Ford,    184    Ala.    137,    63    So.    651 
Mooney  v.  Cooledge,  30  Ark.  640 
Baldwin  v.  WMnslow,  2  Minn.  213 
McAllister     v.     Honea.     71     Miss 


1616 


Real  Property. 


[^  436 


Since  an  exception  is  in  effect  merely  a  part  of  the 
description  of  the  thing  granted,  the  subject  of  the 
exception  remains  in  the  grantor,  as  before  the  con- 
veyance, and  no  words  of  inheritance  or  other  words 
of  limitation  are  necessary  in  order  that  the  grantor 
may  retain  the  same  estate  in  the  thing  excepted  as  he 
had  before.^^ 

An  excexDtion,  in  its  very  nature,  cannot  operate  in 
favor  of  a  person  other  than  the  grantor.^^  But  we 
frequently  find  in  a  conveyance  language  undertaking 
to  except  a  part  or  parts  of  the  land  as  being  the  prop- 
erty of  another,  or  as  having  been  previously  sold  or 
conveyed  to  another/"  In  such  cases  it  is  obvious  that 
the  rights  of  such  other  in  the  part  excepted  are  not 
properly  based  on  the  exception,  but  exist  prior  there- 
to, and  the  effect  of  the  words  of  exception  is  merely 


256,  14  So.  264;  Den  d.  Waugh 
V.    Richardson,    30    N.    C.    470. 

35.  Smith  v.  Ladd,  41  Me.  314; 
Lipsky  V.  Heller,  199  Mass.  310, 
85  N.  E.  453;  Negaunee  Iron  Co. 
V.  Iron  Cliffs  Co.,  134  Mich.  264, 
96  N.  W.  468;  Emerson  v. 
Mooney,  50  N.  H.  318;  Whitaker 
V.  Brown,  46  Pa.  St.  197;  Mandle 
V.  Gharing,  256  Pa.  121,  100  Atl. 
535;  Wheeler  v.  Wood,  30  Vt. 
242.  And  see  cases  cited  ante  §. 
362. 

The  occasional  Massachusetts 
decisions  to  the  contrary  (Curtis 
V.  Gardner,  13  Mete.  (Mass.)  457; 
Jamaica  Pond  Aqueduct  Corp.  v. 
Chandler,  9  Allen  (Mass.)  170; 
are  evidently  no  longer  law.  See 
Wood  V.  Boyd,  145  Mass.  176,  13 
N.  E.  476;  Claflin  v.  Boston  & 
Albany  R.  Co.,  157  Mass.  489,  20 
L.  R.  A.  638,  32  N.  E.  659.  The 
decision  in  Knotts  v.  Hydrick.  12 
Rich.  L.  (S.  Car.)  314  is  based 
on      a      passage      in      gheppards' 


Touchstone  at  p.  100,  which  is 
corrected  in  Preston's  edition  of 
the  work. 

36.  Parsons  v.  Miller,  15  Wend. 
(N.  Y.)  561;  Beardsley  v.  New 
Berlin  Light  &  Power  Co.,  207 
N.  Y.  34,  100  N.  E.  434;  Redding 
V.  Vogt,  140  N.  C.  562,  6  A.  &  E. 
Ann.  Cas.  312,  53  S.  E.  337.  Any 
suggestion  contra  in  Stone  v. 
Stone.  141  Iowa,  438,  20  L.  R.  A. 
(N.  S.)  221,  18  Ann.  Cas.  797,  119 
N.  W.  712,  cannot  be  accepted. 

But  an  exception  in  terms  of 
a  part  of  the  land  in  favor  of  a 
third  person  may  operate  in 
favor  of  the  grantor,  to  exclude 
that  part  from  the  conveyance. 
Corning  v.  Nail  Factory,  40  N.  Y. 
209. 

37.  Lloyd  v.  Gates,  143  Ala. 
231,  111  Am.  St.  Rep.  39,  38  So. 
1022;  Adams  v.  Hopkins.  144  Cal. 
19,  77  Pac.  712;  Mayberry  v. 
Beck,  71  Kan.  609,  81  Pac.  191; 
Sanford  v.   Stillwell.  101  Me.  466, 


§  436]  Transfer  Inter  Vivcjs,  1617 

to  charge  the  grantee,  and  persons  claiming  under  him, 
with  notice  of  the  rights  of  such  other  person.  So  an 
exception,  so  called,  of  an  outstanding  dower  interest,^^ 
does  not  confer  on  the  widow  a  dower  interest  not  pre- 
viously existent,  but  merely  recognizes  the  existence  of 
such  interest. 

Sufficiency  of  reservation.     Upon  the  question 


whether  words  of  inheritance  are  necessary  in  a 
reservation,  in  order  to  confer  an  interest  greater 
than  for  life,  the  cases  are  not  in  accord.  It  would 
seem,  on  principle,  that  such  words  would  be  necessary, 
in  the  creation  of  an  easement  or  right  of  profit  by 
reservation,  when  they  would  be  necessary  in  the  crea- 
tion of  such  a  right  by  grant,  and  not  otherwise.  The 
cases,  however,  ordinarily  discuss  the  question  w^ithout 
reference  to  the  consideration  of  the  necessity  of  such 
words  in  a  grant.  It  has  occasionally  been  decided,  or 
asserted,  that  such  words  are  necessary  in  order  to 
reserve  an  easement  to  the  grantor  and  his  heirs,^"  and 
this  view  has  been  adopted  in  at  least  one  state  in 
which  a  conveyance  of  the  land  itself  in  fee  simple  may 
be  made  without  the  use  of  such  words.^^  In  tlie 
greater  number  of  states  the  courts  have  refused  to  ap- 
ply the  requirement  of  words  of  inheritance  to  the  case 
of  a  resei^v^ation  of  an  easement,  this  view  being  some- 
times based  on  the  statute  dispensing  with  words   of 

64    Atl.    843;    Midget   v.   Wharton,  E.    R.    Co,    156    Mass.    181,    30    N. 

102  N.  C.  144,  8  S.  E.  778;   In  re  E.    612;    Claflin    v.    Boston    &    A. 

Stokeley's  Estate,  19  Pa.  476;  Bell  R.  Co.,  157  Mass.  489,  20  L.  R.  A. 

V.  Gardner  &  Lacey  Lumber  Co.,  638,    32    N.    E.    659;     Simpson    v. 

85  S.  C.   182,   67   S.   E.   151;    Har-  Boston    &    M.    R.    R.,    176    Mass. 

man    v.    Stearns,    95    Va.    58,    27  359,    57    N.    E.    674;    Hornbeck    v. 

S.  E.  601.  Westbrook,  9   Johns.    (N.  Y.)    73; 

38.  Canedy  v.  Marcy,  13   Gray  Kister  v.   Rieser.   98   Pa.   1. 
(Mass.)   373;   Meserve  v.  Meserve,  40.     Dawson    v.   Western   M.   R. 
19    N.    H.    240;     Crosby    v.    Mont-  Co.,   107   Md.   70,   14   L.   R.   A.    (N. 
gomery,     38     Vt.     238;     Swick     V.  S.)    809,   126  Am.   St.   Rep.  337.  15 
Sears  1  Hill  (N.  Y.)  17.  Ann.    Ca.s.   678,   68    Atl.    301.      See 

39.  Knelle    v.    Knecht,    99    111.  Negaunee    Iron  Co.   v.   Iron   Cliffs 
396;    White    v.    New    York    &    N.  Co.,  134  Mich.  264,  96  N.  W.   468. 


1618 


Real  Property. 


[^  437 


inheritance  for  the  purpose  of  creating  an  estate  in 
fee  simj^le,  and  sometimes  on  the  theory  that  the  ease- 
ment must  be  presumed  to  be  of  a  quantum  correspond- 
ing to  the  estate  of  the  neighboring  land  retained  by 
him,  to  which  the  easement  is  appurtenant.^^ 

§  437.  Rules  of  construction.  The  courts,  in  con- 
nection with  the  construction  of  written  conveyances,  as 
of  other  instruments,  have  asserted  some  general  rules 
of  construction,  to  aid  in  ascertaining  the  intention  of 
the  parties  thereto. 

In  case  of  doubt,  it  is  said,  the  conveyance  is  to 
be  construed  most  strongly  as  against  the  grantor,  or 
in  favor  of  the  grantee,  on  the  theory,  it  seems,  that 
the  words  used  are  to  be  regarded  as  the  words  of  the 
grantor  rather  than  of  the  grantee.^^  Applying  this 
rule,  an  exception  or  reservation  in  a  conveyance  is 
construed  in  favor  of  the  grantee  rather  than  of  the 
grantor.^  ^ 


41.  Ante  §   362. 

42.  Co.  Litt.  48a,  183a;  Neill 
V.  Devonshire,  8  App.  Cas.  135; 
Dickson  v.  Van  Hoose,  157  Ala. 
459,  19  L.  R.  A.  (N.  S.)  717,  47 
So.  718;  Jenkins  v.  Ellis,  111 
Ark.  220,  163  S.  W.  524;  Younger 
V.  Moore,  155  Cal.  767,  103  Pac. 
221;  Brown  v.  State,  5  Colo.  496; 
Sweeney  v.  Landers,  80  Conn. 
575,  69  Atl.  566;  Peoria  &  P. 
Union  Ry.  Co.  v.  Tamplin,  156 
111.  285,  40  N.  E.  960;  Robertson 
V.  Lieber,  56  Ind.  App.  152,  105 
N.  E.  66;  Weaver  v.  Osborne,  154 
Iowa  10,  38  L.  R.  A.  (N.  S.) 
706,  134  N.  W.  103;  Chapman  v. 
Hamblet,  100  Me.  454,  62  Atl.  215; 
Second  Universalist  Soc.  v.  Du- 
dan,  65  Md.  460;  Soria  v. 
Harrison  County,  96  Miss.  109, 
50  So.  443;  Grooms  v.  Morrison, 
249     Mo.     544,     155     S.     W.     430; 


Crane  v.  McMurtrie,  77  N.  J. 
Eq.  545,  78  Atl.  170;  Outlaw 
V.  Gray,  163  N.  C.  325,  79 
S.  E.  676;  CoUison  v.  Phila- 
delphia Co.  233  Pa.  350,  82 
Atl.  474;  Huntley  v.  Hough- 
ton. 85  Vt.  200,  81  Atl.  452;  South 
&  Western  R.  Co.  v.  Mann.  108 
Va.  557,  62  S.  E.  354;  Maxwell 
v.  Harper,  51  Wash.  351,  98  Pac. 
756;  Dear  Creek  Lumber  Co.  v. 
Sheets,  75  W.  Va.  21,  83  S.  E. 
81;  Green  Bay  &  Mississippi 
Canal  Co.  v.  Hewett,  55  Wis.  96, 
12   N.   W.   382. 

43.  Cardigan  v.  Armitage,  2  B. 
&  C.  197;  Jacobs  v.  Roach,  161 
Ala.  201,  49  So.  576;  Wiley  v. 
Sirdorus,  41  Iowa,  224;  Towns 
v.  Brown,  (Ky.)  114  S.  W.  773; 
Wellman  v.  Churchill,  92  Me. 
193,  42  Atl.  352;  Billings  v. 
Beggs,    114    Me.    67,   95    Atl.    354; 


§  437] 


Tbansfer  Inteb  Vrv^os. 


1619 


The  rule  has  been  applied  in  the  case  of  a  lease,  in 
favor  of  the  lessee/^  and  in  the  ease  of  a  mortgage,  in 
favor  of  tlie  mortgagee.'*^  The  rule  has  been  occasion- 
all.v  referred  to  as  one  of  last  resort,^"  and  as  one  of 
questionable  utility  or  propriety.'*'  There  are  occasion- 
al suggestions  to  be  found  that  the  rule,  while  applicable 
in  the  case  of  a  deed  poll,  does  not  apply  in  the  case  of 
an  indenture,  the  language  of  which  is  to  be  regarded  as 
that  of  both  parties.*** 

In  case  of  a  clear  repugnancy  between  two  clauses 
of  the  conveyance,  the  earlier  clause  should,  it  is  said, 
prevail  over  the  later  clause.^^  This  rule  likewise  has 
been  referred  to  as  one  of  last  resort,^*^  and  of  question- 
able utilitv.^^ 


Derby  v.  Hall,  2  Gray  (Mass.) 
236;  Bolio  v.  Marvin,  130  Mich. 
82,  89  N.  W.  563;  Cocheco  Mfg. 
Co.  V.  Whittier,  10  N.  H.  305; 
Duryea  v.  New  York,  62  N.  Y. 
592;  Beardslee  v.  Light  etc.  Co., 
207  N.  Y.  34,  100  N.  E.  434; 
Klaer  v.  Ridgeway,  86  Pa.  329; 
Sheffield  Water  Co.  v.  Elk  Tan- 
ning Co.,  225  Pa.  614,  74  Atl. 
742;  Bradley  v.  Virginia  Ry.  & 
Power  Co.,  118  Va.  233  87  S. 
E.   721. 

44.  Doe  V.  Dixon,  9  East  15; 
Dann  v.  Spurrier,  3  Bos.  &  P. 
399. 

45.  Stuart  v.  Worden,  42  Mich. 
154,  3  N.  W.  876;  United  States 
Mortgage  Co.  v.  Gross,  93  111.  483. 

46.  Patterson  v.  Gage,  11  Colo. 
50;  Swan  v.  Morehouse,  6  Dist. 
Col.  225;  Falley  v.  Giles,  29  Ind. 
114;  Carroll  v.  Granite  Mfg.  Co., 
11  Md.  411;  Biddle  v.  Vande- 
venter,  26  Mo.  500;  Flagg  v. 
Eames,  40  Vt.  16,  94  Am.  Dec. 
363. 

47.  Taylor  v.  St.  Helens  Corp., 
6    Ch.    D.   264,   per   .lessel    M.   R.; 


Swan  V.  Morehouse,  6  Dist.  Col. 
225;  Biddle  v.  Vanderventer,  26 
Mo.  500. 

48.  Sheppard's  Touchstone  87, 
2  Blackst.  Coram.  380;  Browning 
V.  Beston,  Plowd  131;  Palmer 
V.  Evangelical  Baptist  Benevolent 
&  Missionary  Soc.  166  Mass.  143, 
43  N.  E.  1028;  Union  Water 
Power  Co.  v.  Lewiston,  101  Me. 
564,   65   Atl.   67. 

49.  Sheppard's  Touchstone,  88; 
Norton  Deeds,  80;  Robertson  v. 
Robertson,  191  Ala.  297,  68  So. 
52;  Tubbs  v  .Gatewood,  26  Ark. 
128;  Havens  v.  Dale,  18  Cal.  359; 
Lewman  v.  Owens,  132  Ga.  484; 
Marden  v.  Leimbach,  115  Md. 
206,  80  Atl.  958;  Blackwell  v. 
Blackwell,  124  N.  C.  269,  32  S. 
E.    676. 

50.  Bush  V.  Watkins,  14  Beav. 
425;  Berners  v.  Real  Estate  Co., 
134  Mo.  App.  290,  114  S.  W.  131; 
Waterman  v.  Andrews,  14  R.  I. 
589. 

51.  McWilliams  v.  Ramsay,  »'?3 
Ala.,  813;  Pike  v.  Munroe,  36  Me. 
309,   58  Am.  Dec.  751. 


1620 


Real.  Property. 


[§  437 


Language  of  premises  as  controlling.     It  was 

a  well  established  rule  of  the  common  law  that,  in  the 
case  of  a  clear  repugnancy  between  the  premises  and 
the  haheudmn,  the  premises  would  prevail  to  the  ex- 
tent that  an  estate  specifically  limited  in  the  gTantini>' 
clause  could  not  be  cut  down  to  a  less  estate  or  in- 
validated by  the  language  of  the  h<fhendum.''~  This  rule 
w^as  a])])lied,  however,  only  when  there  was  a  specific 
limitation  in  the  premises  and,  in  the  absence  of  such  a 
limitation,  the  qumiium  of  the  estate  conveyed  might 
be  determined  by  the  language  of  the  habendum.  For 
instance,  while  a  conveyance  without  words  of  inheri- 
tance would  pass  merely  a  life  estate,  the  insertion  of 
such  words  in  the  habendum  was  sufficient  to  supply 
their  lack  in  the  premises,  for  the  purpose  of  creating 
an  estate  in  fee  simple,  as  for  instance,  in  the  case  of  a 
conveyance  to  A,  to  have  and  hold  to  A  and  his  heirs."'" 
And  on  the   same  principle   where,  under  the  modern 


52.  Throckmerton  v.  Tracy,  1 
Plowd.  145;  2  Blackst.  Comm. 
298;  2  Sanders,  Uses  &  Trusts 
155,  note;  Challis,  Real  Prop. 
(3rd  Ed.)  411;  Norton  Deeds 
294. 

Even  at  common  law,  although 
the  grant  in  the  premises  was 
to  A.  and  his  "heirs,"  the  haben- 
dum might  show  that  a  fee  tail 
only  was  created,  this  being  re- 
garded, not  as  abridging  the 
estate  granted,  but  as  merely 
a  qualification  of  the  word 
"heirs"  as  first  used.  Co.  Litt. 
21a;  Turnman  v.  Cooper,  Cro. 
Jac.  476;  Altham's  Case,  8  Coke, 
154b.  See  Smith  v.  Lindsay.  37 
Pa.  Super  Ct.  171.  A  conveyance 
to  A.  and  the  heirs  of  his  body, 
habendum  to  him  and  his  heirs 
forever,  gave  A.  an  estate  tail, 
probably  with  a  fee  simple  ex- 
pectant.   Co.    Litt.    21a    and    Mar- 


grave's note;  Corbin  v.  Healy,  20 
Pick.  (Mass.)  514.  See  Hunter  v. 
Patterson,  142  Mo.  310,  44  S.  W. 
250. 

The  English  authorities  are  to 
the  effect  that  the  habendum, 
may  operate  to  enlarge  the  estate 
named  in  the  pr^^mises,  though 
not  to  abridge  it.  See  Co.  Litt. 
299a,  2  Sanders,  Uses  &  Trusts 
(5th  Ed.)  156;  Challis'  Real  Prop. 
(3rd  Ed)  411;  Kendal  v.  Macfeild 
Barn.  Ch.  Rep.  46.  But  see 
Karchner  v.  Hoy,  151  Pa.  383,  25 
Atl.  20. 

53.  Co.  Litt.  183a;  Sheppard's 
Touchstone,  76,  102,  113;  Altham's 
Case,  8  Coke,  154b;  Berry  v. 
Billings,  44  Me.  416,  69  Am.  Dec. 
107;  Havens  v.  Sea  Shore  Land 
Co.,  47  N.  J.  Eq.  365,  20  Atl.  497: 
Phillips  V.  Thompson,  73  N.  C. 
543;  McLeod  v.  Tarrant,  39  S.  C. 
271,  20  L.  R.  A.  846.  17  S.  E.  773; 


§  437] 


Transfer  Inter  Vivos. 


1621 


statutes  ill  force  in  many  states,^^  a  grant  to  A,  without 
words  of  inheritance,  creates  a  fee  simple,  or  passes 
whatever  estate  the  grantor  may  have,  the  hahendum 
may  show  that  an  estate  for  life  only  is  intended  to  be 
conveyed. ^^ 

AVhile  the  common-law  rule  that  an  estate  specifical- 
ly limited  in  the  premises  cannot  be  abridged  by  the 
habendum  is  still  not  infrequently  asserted  and  oc- 
casionally receives  a  practical  application,^^'  the  tendency 


Hanks  v.  Folsom,  11  Lea,  (Tenn.) 
555. 

54.  Ante  §   21(a). 

55.  McDill  V.  Meyer,  94  Ark. 
615,  128  S.  W.  364;  Montgomery 
V.  Sturdivant,  41  Cal.  290;  Buck 
V.  Garber,  261  111.  378,  103  N.  E. 
1059;  Doren  v.  Gillum,  136  Ind. 
134,  35  N.  E.  1101;  Yeager  v. 
Farnsworth,  163  Iowa,  537,  145  N. 
W.  87;  Bodine's  Adm'rs  v.  AHhur, 
91  Ky.  53,  34  Am.  St.  Rep.  162. 
14  S.  W.  904;  Baskett  v.  Sellars, 
93  Ky.  2,  19  S.  W.  9;  Kelly  v. 
Hill,— (Md.),— 25  Atl.  919;  Week- 
ley  V.  Weekley  75  W.  Va.  280,  83 
S.  E.  1005. 

It  has  even  been  decided  that 
since,  under  these  statutes,  the 
presence  of  words  of  inheritance 
is  immaterial,  the  habendum  may 
show  that  a  life  estate  only  is 
intended,  although  the  grant  is 
in  terms  to  one  and  his  heirs. 
Barnett  v.  Barneft.  10?  Cal.  298. 
37  Pac.  1049;  Davidson  v.  Manson 
lie  Mo.  608,  48  S.  W.  635; 
Trlplett  V.  Williams,  149  N.  C. 
394,  24  L.  R.  A.  (N.  S.)  514, 
63  S.  E.  79;  Contra.  Prindle  v. 
Iowa  Soldiers'  Orphans'  Home, 
153    Iowa,    234,    133    N.   W.   160. 

56.  Dickson  v.  Van  Hoose,  .157 
Ala.  459,  19  L.  R.  A.  (N.  S.)  719. 
47  So.  718;   Caulk  v.  Pox,  13  Fla. 


148;  Kron  v.  Kron,  195  111.  181,  62 
N.  E.  809;  Chamberlain  v.  Runkle, 
28  Ind.  App.  607,  63  N.  E.  486; 
Richards  v.  Richards,  60  Ind. 
App.  34,  110  N.  E.  103; 
Prindle  v.  Iowa  Soldiers'  Orphans' 
Home,  153  Iowa,  324,  133  N.  W. 
106;  Land  v.  Land,  172  Ky.  145, 
189  S.  W.  1;  Lurk  v.  McNabb,  111 
Md.  641.  74  Atl.  825;  Smith  v. 
Smith,  71  Mich.  633,  40  N.  W.  21; 
Teague  v.  Sowder, —  (Tenn.) — 114 
S.  W.  484;  Reese  Howell  Co. 
V.  Brown.  48  Utah,  142,  158  Pac. 
684. 

So  after  giving  in  clear  terms 
a  fee  simple,  a  subsequent  clause 
undertaking  to  state  the  persons 
to  whom  the  land  should  pass  on 
the  grantee's  death  has  been  re- 
garded as  invalid.  Marsh  v. 
Morris,  133  Ind.  54«,  33  N.  E. 
290:  Humphrey  v.  Potter,  24  Ky. 
L.  Rep.  1264,  70  S.  W.  1062; 
Robinson  v.  Payne,  58  Miss.  690; 
Wilkins  v.  Norman,  139  N.  C.  40, 
ni  Am.  St.  Rep.  767,  51  S.  E. 
797. 

In  Morton  v.  Babb,  251  111.  488, 
96  N.  E.  2'9.  it  was  decided  that 
where  the  granting  clause  was 
to  A  and  his  heirs  subject  to  a 
limitation  over  to  B.,  such  limita- 
tion over  was  valid  and  effective 
although  the  habendum  was  to  A 


1622 


BeaIi  Propehty. 


[^  437 


at  the  present  time  is  very  considerably  to  limit  its 
operation.  Even  thongii  the  language  of  the  habendum, 
or  of  some  other  subsequent  clause  of  the  conveyance 
is,  considered  by  itself,  inconsistent  with  that  of  the 
premises,  the  court  will  frequently  refuse  to  recognize 
any  inconsistency  and,  viewing  the  instrument  as  a 
whole  rather  than  as  an  aggregate  of  distinct  parts, 
will  consider  the  habendum  or  other  subsequent  clause 
merely  as  an  aid  in  the  construction  of  the  premises. ^^ 
In  this  way,  without  any  explicit  repudiation  of  the 
common-law  rule,  the  court  may  accord  to  the  habendum 
a  preponderating  influence  such  as  it  did  not  have 
at  common  law.^^  So  it  has  been  said  that  the  common- 
law  rule  is  one  to  be  applied  only  when  there  is  an 
irreconcilable  conflict  between  the  two  parts  of  the 
convey  ance.^^ 


and  his  heirs  without  the  limita- 
tion over,  it  being  said  that  in 
case  of  inconsistency  the  grant- 
ing   clause    should    control. 

In  Cole  V.  Collie,  131  Ark.  103, 
198  S.  W.  710,  it  was  held  that 
an  exception  of  the  minerals  in 
the  land  conveyed,  inserted  in 
the  Jiabendum.  was  nugatory. 

57.  McWilliams  v.  Ramsey,  23 
Ala.  813;  Whetstone  v.  Hunt,  78 
Ark.  230,  8  A.  &  E.  Ann.  Cas.  443, 
93  S.  W.  979;  Barnett  v.  Barnett, 
104  Cal.  298,  37  Pac.  1049;  Bray 
V.  McGinty,  94  Ga.  192,  21  S.  E. 
284;  Husted  v.  Rollins,  156  Iowa, 
546,  137  N.  W.  462,  42  L.  R.  A.  N. 
S.  378;  Palmer  Oil  &  Gas.  Co.  v. 
Blodgett,  60  Kan.  712,  57  Pac. 
947;  Wilson  v.  Moore,  146  Ky. 
679,  143  S.  W.  431;  May  v.  Jus- 
tice, 148  Ky.  696,  147  S.  W.  409; 
Putnam  v.  Pere  Marquette  R.  R., 
174  Mich.  246,  140  N.  W.  554; 
Davidson  v.  Manson,  146  Mo.  608, 


48  S.  W.  635;  Triplett  v.  Wil- 
liams, 149  N.  C.  394,  24  L.  R.  A. 
N.  S.  514,  63  S.  E.  79;  Fogarty  v. 
Stach,  86  Tenn.,  610,  8  S.  W. 
846;  Johnson  v.  Barden,  86  Vt. 
19,  Ann.  Cas.  1915  A,  1243,  83 
At.  721. 

58.  See  Barnett  v.  Barnett,  104 
Cal.  300,  37  Pac.  1050;  Garrett  v. 
Wiltse,  252  Mo.  699,  161  S.  W. 
694;  Jones  v.  Whichard,  163  N.  C, 
241,  79  S.  E.  503;  Culpepper  Nat. 
Bank  v.  Wrenn,  115  Va.  55,  78 
S.  E.  620;  Weekley  v.  Weekley.  75 
W.  Va.  280,  83  S.  E.  1005. 

59.  McWilliams  v.  Ramsay,  23 
Ala.  813;  Whetstone  v.  Hunt,  78 
Ark.  230,  93  S.  W.  979;  Richards 
V.  Richards,  60  Ind.  App.  34,  110 
N.  E.  103;  Henderson  v.  Mack, 
82  Ky.  379;  Land  v.  Land,  172 
Ky.  145.  189  S.  W.  1;  Robinson 
V.  Payne,  58  Miss.  690;  Black- 
well  v.  Blackwell,  124  N.  C 
269,   32    S.    E.    676. 


§  437]  Transfeb  Inter  Vivos.  1623 

Occasional!}^  the  application  of  the  common-law  rule 
referred  to  has  been  regarded  as  called  for  when  an 
estate  in  fee  simple  was  clearly  created  by  the  granting 
clause,  and  subsequently  a  limitation  over  in  favor  of 
another  j^erson  was  inserted,  to  take  effect  upon  the 
death  of  the  grantee  under  some  particular  contingency, 
as  for  instance,  death  without  issue,  with  the  result  of 
regarding  such  limitation  over  as  invalid  because  op- 
erating to  abridge  the  estate  previously  created.''^ 
Such  a  view  is,  however,  difficult  to  accept.  An  execu- 
tory limitation  in  defeasance  of  a  fee  simple  is  perfectly 
valid  when  it  occurs  in  a  will;*'^  and  there  is  no  reason 
why  it  should  not  be  so  regarded  when  it  occurs  in  a 
conveyance  i)iter  vivos.  Indeed  the  validity  of  such  a 
limitation,  taking  etfect  under  the  Statute  of  Uses,  has 
long  been  recognized,  being  the  ordinary  case  of  a 
"shifting  use."^^  The  common-law  rule  that  an  estate 
given  in  the  granting  clause  cannot  be  subsequently  cut 
down  to  a  less  estate  does  not  properly  apply  to  such  a 
case  of  a  mere  possibility  of  the  divesting  of  the  fee 
simple  estate  by  reason  of  the  occurrence  of  some  future 
contingency,  even  though  this  is  named  to  occur  at 
the  time  of  the  death  of  the  grantee.  The  grantee  has, 
in  spite  of  this  divesting  clause,  an  estate  in  fee  simple 
and  not  a  life  estate,  so  long  as  he  has  any  estate  what- 
soever.^^ 

60.     Scull    V.   Vaugine,    15    Ark.  ton   v.   Babb,    251    111.    488,    96   N. 

695;     Carl    Lee    v.    Ellsberry,    82  E.     279;     Fogarty    v.     Stack,     8G 

Ark.    29,    12   L.   R.   A.    N.    S.    957,  Tenn.    610,    8    S.    W.    846. 

101    S.   W.   407;    Palmer   v.    Cook,  61.     Ante  §§   160,  163b. 

159  111.,  300,  50  Am.  St.  Rep.  165,  62.     Ante  §  157. 

42  N.  E.  796;    Lamb  v.  Medsker,  63.     A    like    criticism    may    be 

35   Ind.   App.   662,   74   N.   E.   1012  made,  it  is  submitted,  of  occasion- 

(semble) ;    Ray  v.  Spears,  23  Ky.  al    decisions   that    after    a    clause 

Law     Rep.     14,    64    S.    W.    413;  creating    a    fee    simple    estate,    a 

Hughes    V.    Hammond,    130    Ky.  subsequent  clause  creating  a  pow- 

694,   26   L.    R.    A.   N.    S.    808,   125  er     of    disposition,     the     exercise 

S  W.  144;    Ex  parte  Town,   17  S.  of    which    would    divest    the    fee 

C.   532;    Glenn  v.   Jamison,    48    S.  simple,     is     invalid.       See     e.     g. 

C.  316,  26  S.  E.  277;   Contra.  Mor-  Pritchett  v.  Jackson,  103  Md.  696, 


1624 


Real.  Property. 


[§  438 


§  438.  Consideration.  A  conveyanee  is  not,  prop- 
erly speaking,  a  contract,  though  it  is  usually  the  result 
of  agreement,  and  a  consideration  is  consequently  not 
necessary  to  its  validity,  except  when  the  conveyance  is 
one  operating  under  the  Statute  of  Uses.^*  In  other 
words,  the  owner  of  land  has  the  same  right  to  make 
a  gift  thereof  to  another  person  as  he  has  to  sell  it,  and 
the  only  persons  who  can  question  the  validity  of  the 
conveyance  for  want  of  consideration  are  creditors  who 
may  thereby  lose  the  means  of  satisfying  their  de- 
mands.*^^  The  absence  of  consideration  may  also  de- 
prive the  grantee  of  the  right  to  claim  the  position  of  a 
purchaser  for  value  as  against  the  adverse  rights  of 
third  persons,®^  as  well  as  of  the  right  to  ask  a  refor- 
mation of  the  conveyance  on  account  of  mistake.^'^  In 
some  states,  by  reason  of  a  statute  abolishing  private 
seals,  or  changing  their  effect,  the  fact  that  the  con- 


es   At.    965;     Blair    v.    Muse,    83 
Va.  238,  2  S.  E.  31. 

64.  1  Sanders,  Uses  &  Trusts 
67,  4  Kent.  Comm.  462;  McKee  v. 
West,  141  Ala.  531,  109  Am.  St. 
Rep.  54,  37  So.  740;  Kline  v. 
Kline,  14  Ariz,  369,  128  Pac.  805; 
Tillaux  V.  Tillaux,  115  Cal.  663,  47 
Pac.  691;  Campbell  v.  Whitson, 
68  111.  240,  18  Am.  Rep.  553; 
Thompson  v.  Thompson,  9  Ind. 
323,  68  Am.  Dec.  638;  Conway  v. 
Rock,  139  Iowa,  162,  117  N.  W. 
273;  Hanson  v.  Buckner's  Exc'r. 
4  Dana  (Ky.)  251,  29  Am.  Dec. 
401;  Laboree  v.  Carleton,  53  Me. 
211;  Goodwin  v.  White,  59  Md. 
503;  Beal  v.  Warren,  2  Gray 
(Mass.)  447;  Gale  v  Gould,  40 
Mich.  515;  Burnett  v.  Smith,  93 
Miss.  566,  47  So.  117;  Masterson 
V.  Sheahan,— Mo.— 186  S.  W.  524; 
Campbell  v.  Tompkins,  32  N.  J. 
Eq.  170;    Mosely  v.  Mosely,  87  N. 


Car.  69;  Howard  v.  Turner,  125 
N.  Car.  107,  34  S.  E.  229;  Carna- 
gie  V.  Diven,  31  Oreg.  366,  49 
Pac.  891;  Kelly's  Appeal,  108  Pa. 
29;  Brown  v.  Brown,  44  S.  C. 
378,  22  S.  E.  412;  Bernardy  v. 
Colonial  &  U.  S.  Mtge.  Co.,  17  S. 
Dak.  637,  106  Am.  St.  Rep.  791,  98 
N.  W.  166;  Battle  v.  Claiborne, 
133  Tenn.  286,  180  S.  W.  584. 

65.  Post,    §    587. 

66.  Post.    §§    566-579. 

67.  Enos  V.  Stewart,  138  Cal. 
112,  70  Pac.  1005;  Strayer  v. 
Dickerson,  205  111.  257,  68  N.  E. 
767;  St.  Clair  v.  Marquell,  161 
Ind.  56,  67  N.  E.  693;  Shears  v. 
Westover,  110  Mich.  505,  68  N.  W. 
266;  Powell  v.  Morisey,  98  N.  Car. 
426,  2  Am.  St.  Rep.  343,  4  S.  E; 
185;  Hout  V.  Hout,  20  Ohio  St. 
119;  Burgson  v.  Jacobson,  124 
Wis.    295,    102    N.   W.    56:!. 


§  438]  Transfer  Inter  Vivos.  1625 

veyance  is  voluntary  would  constitute  a  defense  to  an 
action  on  the  grantor's  covenants/'^ 

Although  there  can  be  not  the  slightest  question 
that  a  conveyance  is  ordinarily  valid  without  any  con- 
sideration, expressions  are  to  be  found  in  judicial 
opinions  in  this  regard  which  may  tend  to  mislead. 
For  instance,  in  upholdng  a  conveyance,  the  courts  oc- 
casonally  refer  to  the  consideration  as  being  sufficient,^^ 
and  not  infrequentlj^  it  is  stated  that  love  and  aifection 
constitute  a  sufficient  consideration.'^'^  And  likewise, 
the  statement  that  the  seal  on  the  conveyance  imports 
a  consideration  is  calculated  to  imply  that  a  consider- 
ation is,  apart  from  the  seal,  necessary  to  a  conveyance.'^ 
But  there  are  few,  if  any,  actual  decisions,  that  a  con- 
veyance, not  operating  under  the  Statute  of  Uses,  is 
invalid  as  against  the  grantor  or  his  heirs,  by  reason  of 
lack  of  consideration. 

Ordinarily  in  a  conveyance,  a  consideration,  fre- 
quently a  nominal  sum  merely,  is  named,  and  the  re- 
ceipt thereof  is  expressly  acknowledged.  Such  a  clause 
in  the  conveyance  serves  to  rebut  any  implication  of  a 
resulting  use   or  trust  in  favor  of  the  grantor,'^-   and 

68.  See  Wilbur  v.  Warren,  104  Y.  660.  So  it  has  been  said  that 
N.  Y  192,  10  N  E.  263.  no  consideration  is  necessary  for 

69.  See  e.  g.  Barnes  v.  Mult-  a  conveyance  to  children  or 
nomah  County,  145  Fed.  695;  grandchildren.  Spencer  v.  Razor, 
Steen  v.  Steen,  169  Iowa,  264,  251  111.  278,  96  N.  E.  300.  And  it 
151  N.  W.  115;  Bissell  v.  Taylor,  has  been  said  that  a  "good"  con- 
41  Mich.  702,  3  N.  W.  194;  An-  sideration  is  sufficient,  without 
derson  v.  Baines,  156  Mo.  664,  57  stating  what  is  a  good  considera- 
S.  W.  726;  Boyd  v.  Lloyd,  86  tion.  Powers  v.  Munson  74,  Wash. 
Ark.    169,    110    S.    W.    596;    Jones  234,    133    Pac.   453. 

V.  Gatliff,— (Ky.)— 113  S  .W.  436;  71.     Rendleman    v.    Rendlenian, 

Ames   V   Moore,    54    Ore.    274,    101  156  111.  568,  41  N.  E.  223;    Brown 

Pac.  769.  V.    Brown,   44    S.   Car.    378,    22    S. 

70.  See  e.  g.  Conley  v.  Nailor,  E.  412;  Golle  v.  State  Bank  of 
118  U.  S.  127,  30  L.  Ed.  112;  Wilson  Creek,  52  Wash.  437,  10(t 
Oliphant    v.    Llversidge,    142    111.  Pac.   984. 

160,  30  N.  E.  334;    Studybaker  v.  72.     Peeney  v.  Howard,  79  Cal. 

Cofield,  159  Mo.  59C,  61  S.  W.  525,  4  L.  R.  A.  826,  12  Am.  St. 
246;    Loeschlgk  v.  Hatfield,  51  N.      Rep.  162,  21  Pac.  984;    Meeker  v. 


1626 


Heal.  Property. 


[§  438 


likewise  to  furnish  support  for  the  conveyance  as  a 
bargain  and  saleJ^  But  the  fact  that  the  instrument 
does  not  recite  the  payment  of  a  consideration  does  not 
affect  the  right  of  the  grantee  to  show  its  payment.^* 
An  acknowledgment  in  the  instrument  of  the  receipt 
of  the  consideration  is  conclusive  upon  the  parties  as 
to  the  fact  that  a  consideration  was  paid,  in  so  far  as 
the  payment  of  a  consideration  may  be  regarded  as 
necessary  to  support  the  conveyance/^  or  in  so  far  as 
such  payment  might  serve  to  exclude  any  presumption 
of  a  resulting  trust  in  favor  of  the  gTantor.'^  It  is, 
however,  for  most  purposes,  open  to  contradiction,  as  is 


Meeker,  16  Conn.  383;  Acker  v. 
Priest,  92  Iowa,  610,  61  N.  W. 
235;  Groff  v.  Rohrer,  35  Md.  327; 
Gould  V.  Lynde,  114  Mass.  366; 
Moore  v.  Jordan,  65  Miss.  229,  7 
Am.  St.  Rep.  641,  3  So.  737;  2 
Story,  Eq.  Jur.  §  1199. 

73.     Ante  §  428. 

■74.  Fisher  v.  Smith,  Moore, 
569;  Smith  v.  Lane,  1  Leon.  170; 
Goad  V.  Moulton,  67  Cal.  536,  8 
Pac.  63;  Lowry  v.  Howard,  35 
Ind.  170,  9  Am.  Rep.  676;  Boynton 
V.  Rees,  8  Pick.  (Mass.)  329,  19 
Am.  Dec.  326;  Underwood  v. 
Campbell,  14  N.  H.  393;  Wood  v. 
Chapin,  13  N.  Y.  509,  67  Am.  Dec. 
62;  Den  d  Siprings  v.  Hanks,  27 
N.  C.  30;  Sprague  v.  Woods,  4 
Watts  &  S.  (Pa.)  192;  Jackson  v. 
Dillon's  Lessee,  2  Overt  (Tenn.) 
261;    Wood    v.    Beach,    7    Vt.    522. 

75.  Russ  V.  Mebins,  16  Cal.  35o; 
Cheesman  v.  Nicholl,  18  Colo.  App. 
174,  70  Pac.  797;  Kimball  v. 
Walker,  30  111.  482,  511;  Aber- 
nathie  v.  Rich.  256  111.  166,  99  N. 
E.  883;  Acker  v.  Priest,  92  Iowa. 
610,  61  N.  W.  235;  Maxwell  v. 
McCall,  145  Iowa,  687,  124  N.  W. 
760;  Beavers  v.  McKinley,  50  Kan. 


602,  32  Pac.  363,  33  Pac.  359; 
Goodspeed  v.  Fuller,  46  Me.  141; 
McKusick  V.  Washington  County 
Commissioners,  16  Minn.  151; 
Strong  V.  Whyback,  204  Mo.  341, 
12  L.  R.  A.  N.  S.  240,  102  S.  W. 
968;  Morse  v.  Shattuck,  4  N.  H. 
229;  Farrington  v.  Barr,  36  N.  H. 
86;  McCrea  v.  Purmort,  16  Wend. 
(N.  Y.)  460,  30  Am.  Dec.  103; 
Deaver  v.  Deaver,  137  N.  Car.  240, 
49  S.  E.  113;  Finlayson  v.  Finlay- 
son,  17  Ore.  347,  11  Am.  St.  Rep. 
836,   3  L.  R.  A.  801,  21  Pac.  57. 

So  such  acknowledgment  is 
conclusive  for  the  purpose  of  sup- 
porting the  conveyance  as  a  deed 
of  bargain  and  sale.  Fisher  v. 
Smith,  Moor.  569;  Smith  v.  LaBe. 
1  Leon  170;  Wilt  v.  Franklin,  1 
Binn.  502;  Sheppard's  Touchstone- 
223. 

76.  Story  Equity  Jur,  §  1199;  3 
Pomeroy,  Eq.  Jur.  §  1036;  Davis 
v.  Jernigan,  71  Ark.  494,  76  S. 
W.  554;  Feeney  v.  Howard,  79 
Cal.  525,  4  L.  R.  A.  826,  12  Am. 
St.  Rep.  162,  21  Pac.  984;  Luck- 
hart  V  Luckhart,  120  Iowa,  248, 
94  N.  W.  461;  Philbrook  v. 
Delano,    29    Me.     412;     Weiss    v. 


§  438] 


Teansfer  Inter  Vivos. 


1627 


any  receipt.'"  Likewise  the  recital  in  the  instrument  as 
to  the  amount  of  the  consideration  is  ordinarily  not 
conclusivej^  for  the  same  reason,  that  such  recital  is 
not  intended  to  have  a  legal  effect,  is  not,  so  to  speak, 
the  'integration  of  a  legal  act,"'^  but  is  merely  the 
statement  of  a  fact,  and  is  as  such  open  to  explanation 
or  contradiction.  If,  however,  the  recital  of  the  con- 
sideration is  intended  to  have  a  contractual  or  other 
legal  operation,  creating  or  divesting  a  right,  it  is  con- 
clusive upon  the  parties  to  the  instrument. ^^     It  is  for 


Heitkamp,  127  Mo.  23,  29  S.  W. 
709;  Graves  v.  Graves,  29  N.  H. 
129. 

77.  Morton  v.  Morton,  82  Ark. 
492,  102  S.  W.  213;  Wood  v. 
Bangs,  2  Penn.  (Del.)  435;  Sul- 
livan V.  Lear,  23  Fla.  463,  11  Am. 
St.  Rep.  388,  2  So.  846;  Koch  v. 
Roth,  150,  111.  212,  37  N.  E.  317; 
Rhodes  v  Walker,— (Ky.),— 115  S. 
W.  257;  Bassett  v.  Bassett,  55  Me. 
127;  Fowlkes  v.  Lea,  84  Miss.  509, 
68  L.  R.  A.  925,  2  A.  &  E.  Ann. 
Cas.  466,  36  So.  1036;  Shelton  v. 
Cooksey.  138  Mo.  App.  389,  122 
S.  W.  331;  Bingham  v.  Weider- 
wax,  1  N.  Y.  509;  Marcom  v. 
Adams.  122  N.  C.  222,  29  S.  E. 
333;  Singletary  v.  Goeman,  58 
Tex.  Civ.  App.  5,  123  S.  W.  436; 
Spangler  v.  Ashwell,  116  Va.  992, 
83  S.  E.  930;  Halvorsen  v.  Hal- 
vorsen,  120  Wis.  52.  97  N.  W.  494. 

78.  Hitz  v.  National  Metropoli- 
tan Bank,  111  U.  S.  722.  28  L.  Ed. 
577;  London  v.  G.  L.  Anderson 
Brass  Works,  197  Ala.  16,  72  So. 
3.59;  Vaugine  v.  Taylor,  18  Ark. 
65;  Byers  v.  Locke,  93  Cal.  493. 
27  Am.  St.  Rep.  212.  29  Pac. 
119;  Lloyd  v.  Sandusky.  203  111. 
62],  68  N  E.  154;  Allen  v.  Rees. 
136  Iowa,  423.  8  L.  R.  A.  N.  S. 
1137.  110  N.  W^  583;  Goodspeed  v. 


Fuller,  46  Me.  141;  Wilkinson  v. 
Scott,  17  Mass.  249;  Smith  v. 
Maxey.  186  Mich.  151,  152  N.  W. 
1011;  BoUes  v.  Sachs,  37  Minn. 
318,  3.3  N.  W.  862;  Goodman 
v.  Smith,  94  Neb.  227,  142 
N.  W.  521;  McCrea  v.  Pur- 
mort,  16  Wend.  (N.  Y.)  460, 
30  Am.  Dec.  103;  Hebbard  v. 
Haughian,  70  N.  Y.  54;  Michael 
V.  Foil,  100  N.  C.  178,  6  Am.  St. 
Rep.  577,  6  S.  E.  264;  Conklin  v. 
Hancock,  67  Ohio  St.  455,  66  N. 
E.  518;  Grace  v.  McDowell.  60 
Ore.  577,  120  Pac.  413;  Henry  v. 
Zurflieh,  203  Pa.  440,  53  Atl.  243; 
Miller  v.  Livingston.  36  Utah  174, 
61  Pac.  569:  KIckland  v.  Menasha 
Wooden  Ware  Co..  68  Wis.  34,  60 
Ara.  Rep.  831,  31  N  W.  471. 

79.  See  4  Wigmore,  Evidence  §, 
2425  et  seq. 

80.  Wallace  v.  Meeks,  99  Ark. 
350,  138  S.  W.  638;  Hilgeman  v. 
Sholl,  21  Ind.  App.  86,  51  N.  E. 
728;  Milich  v.  Armour  Packing 
Co.,  60  Kan.  229,  56  Pac.  1: 
Gully  v.  Grubbs,  1  J.  .1.  Marsh. 
(Ky.)  387;  Kramer  v.  Gardner, 
104  Minn.  370,  22  L.  R.  A.  (N. 
S.)  492,  116  N.  W.  925;  Baum  v. 
Lynn,  72  Miss.  932,  30  L.  R.  A. 
441.  18  So.  428:  Halferty  v  Searce. 
135   Mo.    428,   ;!7    S.   W.    113,    255; 


1628  Real  Property.  [§  438 

this  latter  reason  that  the  recital  of  the  payment  of  the 
consideration  is  conclusive  for  the  purpose  of  sujDport- 
ing  the  validitj^  of  the  conveyance. ^^  Such  recital  in- 
volves the  statement  of  a  dispositive  or  vestitive  fact, 
and  as  such  is  not  susceiDtible  of  contradiction,  it  stand- 
ing, in  this  regard,  in  the  same  category  as  the  words 
of  conveyance,  or  the  description  of  the  property  con- 
veyed. It  is  for  a  like  reason  that  such  recital  cannor 
be  contradicted  for  the  purpose  of  showing  a  resulting 
trust  in  favor  of  the  grantor.^^  The  operation  of  the 
recital  is  to  vest  the  beneficial  interest  in  the  grantee, 
and  the  recital  cannot  be  contradicted  in  order  to  de- 
prive him  of  such  interest. 

There  has  been  considerable  discussion  of  the  ques- 
tion whether  the  recital  as  to  the  consideration  precludes 
the  parties  from  showing,  not  that  the  consideration 
is  different  in  amount  from  that  recited,  but  is  different 
in  character  therefrom.  The  difference  in  character 
ordinarily  referred  to  in  this  connection  is  the  difference 
between  a  valuable  consideration  and  a  good  consider- 
ation, so  called.  The  expression  "good  consideration," 
means,  however,  merely  a  lack  of  valuable  consideration. 
Consequently,  the  question  whether  an  instrument  which 
recites  a  valuable  consideration  can  be  shown  to  be 
based  on  a  good  consideration  involves  merely  the 
question  whether  it  can  be  shown  to  be  a  gift,  while  the 
converse  question,  whetlier  an  instrument  which  recites 
a  good  consideration  can  be  shown  to  be  based  on  a 
valuable  consideration,  involves  merely  the  question 
whether  it  can  be  shown  not  to  be  a  gift.  Conceding  that 
the  recital  is  not  conclusive  as  to  the  amount  of  the 
valuable  consideration,  and  the   cases   are  in   apparent 

McDaniels  v.   United  Railways  of  v.     Darnell,    89    Wash.    226,    154 

St.  Louis,   165   Mo.  App.   678,  148  Pac.     183;     Monongohela    7ie     & 

S.    W.    464;     Kahn    v.    Kahn,    94  Lumber   Co.   v.   Flannigan,   77  W. 

Tex.    114,    58    S.   W.    825;    Walter  Va.    162,    87    S.    E.    161;     4    Wig- 

V.     Bearing, —  (Tex.) — 65     S.     W.  more.  Evidence  §  2433. 

380;    Pierce  v.  Brew,  43  Vt.   292;  81.     Anie.  this  section,  note  75. 

Union    Machinery    &    Supply    Co.  82.     Ante,  this  section,  note  76. 


§  438]  Tkansfer  Inter  Vivos  .  1620 

unison  to  that  effect,  it  is  not  readily  perceptible  why 
it  should  be  conclusive  as  to  whether  there  is  any  valua- 
ble consideration  whatsoever.  The  cases  ^^  adverse  to 
the  right  to  show  such  a  different  character  of  consider- 
ation, as  it  is  expressed,  ordinarily  involve  the  right 
to  show  that  the  conveyance  was  or  was  not  an  ad- 
vancement, for  the  purpose  of  settling  the  grantor's 
estate  upon  his  death,  or  that  it  was  or  was  not  a  gift, 
for  the  purpose  of  determining  the  course  of  descent 
from  the  grantee,  and  they  are  usually  based  on  the 
theory  that  an  attempt  to  contradict  the  recital  by  show- 
ing the  presence  or  absence  of  a  valuable  consideration 
involves  an  attempt  to  change  the  legal  operation  of 
the  conveyance.  But,  it  is  submitted,  the  operation  of 
the  conveyance,  as  transferring  the  grantor's  rights,  is 
the  same,  whether  he  does  or  does  not  receive  something- 
of  value  in  exchange  therefor,  and  this  is  so  even  though 
the  presence  or  absence  of  such  a  consideration  may 
affect  the  grantee's  rights  as  regards  other  persons,  or 
the  rights  inter  se  of  persons  claiming  under  the  grantee. 
The  very  decided  weight  of  authority  is  to  the  effect 
that  the  recital  of  a  valuable  consideration  does  not 
preclude  a  showing  that  there  was  no  such  consider- 
ation,^^ and  it  has  likewise    been  decided  that  a  recital 

83.     Winningham     v.     Pennock,  Coburn,     18     Pick.     (Mass.)     397. 

.'56   Mo.   App.   688;    Yates  v.    Burt,  And    see    Miller    v.    Goodwin,    8 

161   Mo.  App.   267,  143   S.  W.   73:  Gray  (Mass.)  542,  where  evidenc-e 

Burrage   v.    Bear    Isley,    16    Ohio,  that   the   consideration    was    niar- 

438;  Patterson  v-  Lamson,  45  Ohio  rlage   was  admitted  for  this   pur- 

St.    77,    12    N.    E.    531;    Groves   v.  pose      though     the     deed     recited 

Groves.    65    Ohio    St-    442,    62    N-  merely    past    .services    as    a    con- 

E-   1044.  sideration- 

That  the  conveyance  cannot  be  84-     Morton  v.  Morton,  82  Ark. 

supported  as  a  covenant  to  stand  492,     102     S.    W-     213;     Peck    v. 

seised   when   a  valuable  consider-  Vandenberg,  30  Cal-  11;    Carty  v. 

■atlon     alone      is     recited.       See  Connolly,  91  Cal.  15,  27  Pac-  599; 

Bedell's     Case     7     Co.     Rep.     133.  Meeker  v.  Meeker,  16  Conn.  387; 

Foster  v.  Foster.  Tho.  Raym.   43.  Leggett  v-  Patterson.  114  Ga-  714, 

1  Lev.  55;  Elysville  Co.  v.  Okisko.  40  S.  E.  736;   Rickhill  v.  Spraggs, 

1  Md.  Ch.  315;  Contra-  Gale  v.  9  Ind-  30;  Kenney  v-  Phillippy,  91 
2  R.  P.— 28 


i6;jo 


Real.  Pkopeety. 


[§  438 


of  love  and  affection  as  the  consideration  does  not  pre- 
clude a  showing  of  a  valuable  consideration.^^ 

The  right  to  show  that  the  consideration  for  a  con- 
veyance which  recites  a  valuable  consideration  was, 
while  a  thing  of  value,  a  thing  of  a  different  kind,  as 
for  instance,  merchandise  instead  of  money,  has  been 
generally  recognized.^^ 


Ind.  511;  Finch  v.  Garrett,  102 
Iowa,  381,  71  N.  W-  429;  Crafton 
V.  Inge,  124  Ky.  89,  98  S.  W.  325; 
Koogle  V-  Cline,  110  Md-  587, 
(semble),  24  L.  R.  A-  (N.  S)  413, 
73  Atl  672;  Gale  v-  Coburn,  18 
Pick.  (Mass.)  397;  Harman  v- 
Fisher,  90  Neb-  688,  39  L-  R.  A- 
(N.  S.)  157,  134  N.  W.  246; 
Speer  v.  Speer,  14  N.  J.  Eq.  240; 
Voigt  V.  Dowe,  74  N.  J.  Eq.  560, 
70  Atl.  344;  Palmer  v.  Culbertson, 
143  N-  Y-  213,  38  N-  B-  199; 
Barbee  v  Barbee,  108  N.  C.  581,  13 
S.  E.  215;  Shehy  v.  Cunning- 
ham, 81  Ohio  St.  289,  25  L-  R.  A- 
(N-  S.)  1194,  90  N.  E  805;  Velteu 
V.  Carmack,  23  Ore.  282,  20  L. 
R-  A.  101,  31  Pac-  658;  Lewis  v. 
Brewster,  57  Pa.  St.  410;  Wolf  v. 
King,  49  Tex-  Civ.  App.  41,  107 
S.  W.  617;  Bruce  v-  Slemp,  82 
Va.  352,  4  S.  E.  692. 

85.  Attwell  V.  Harris,  2  Roll 
Rep.  91;  Gale  v.  Williamson,  8 
Mees.  &  W.  405  (as  against  cre- 
ditors) ;  Harman  v.  Richards,  10 
Hare  81  (as  against  creditors); 
Leahy  v.  Dancer,  1  Molloy  313 
(to  show  purchaser  for  value). 

Tompson  v.  Cody,  100  Ga.  771, 
28  S.  E.  669;  Nichols,  Shepherd  & 
Co-  v.  Burch,  128  Ind.  324,  27  N. 
E-  737;  Chantland  v-  Sherman, 
148  Iowa,  352,  125  N.  W.  871; 
Thomas  v.  Smith.  6  Ky  L.  Rep. 
737;    Scudder   v.   Morris,   107   Mo. 


App.  634,  82  S-  W.  217;  Lewis  v. 
Brewster,  57  Pa.  St.  410  {dic- 
tum); Ferguson  v.  Harrison,  41 
S.  C.  340,  19  S.  E.  19;  Contra^ 
Potter  V.  Gracie,  58  Ala.  303; 
Baxter  v.  Sewell,  3  Md.  334;  El- 
linger  V.  Crowl,  17  Md.  361; 
Latimer  v.  Latimer,  53  S.  C.  483, 
31  S.  E.  304.  And  see  Ogden 
State  Bank  v.  Barker,  12  Utah  13, 
40    Pac.    765. 

86.  Townend  v.  Toker,  L-  R-  1 
Ch.  446;  Bailey  v.  Litten,  52  Ala- 
282;  Harraway  v-  Harraway,  136 
Ala.  499,  34  So.  836;  St.  Louis  & 
N.  R.  R.  Co.  V.  Crandall,  75  Ark. 
89,  112  Am-  St  Rep.  42,  86  S.  W- 
855;  Carty  v-  Connolly,  91  Cal. 
15.  27  Pac.  599;  Droop  v-  Ride- 
nour,  11  App.  D.  C.  224;  Stone 
V.  Minter,  111  Ga.  45,  50  L.  R. 
A.  356,  36  S.  E.  321;  Kintner  v. 
Jones,  122  Ind.  148,  23  N.  E. 
701;  Bristol  Sav.  Bank  v.  Stiger, 
86  Iowa,  344,  53  N.  W.  265; 
Twomey  v.  Crowley,  137  Mass. 
184;  Edwards  v.  Latimer,  183 
Mo.  610,  82  S.  W.  109;  Lake  v. 
Bender,  18  Nev.  361,  4  Pac.  711; 
7  Pac.  74;  Medical  College  La- 
boratory V.  New  York  University, 
178  N.  Y.  153,  70  N.  E.  467; 
Price  v.  Harrington,  171  N.  C. 
132,  87  S.  E.  986;  Conklln  v. 
Hancock,  67  Ohio  St.  455.  66  N. 
E.  518;  Barnes  v.  Black,  193  Pa. 
447,  74  Am.  St.  Rep.  694,  44  Atl. 


§  438]  Teansfer  Inter  Vivos.  1631 

As  it  is  not  permissible  to  introduce  evidence  as  to 
the  consideration  in  contradiction  of  the  consideratioi' 
clause  in  so  far  as  such  clause  is  contractual  in  charac- 
ter, or  is  otherwise  intended  to  have  a  legal  effect,^" 
so  it  is  not  permissible  to  introduce  evidence  as  to  the  con- 
sideration in  contradiction  of  any  other  clause  which  is 
contractual  in  character  or  intended  to  have  a  legal  ef- 
fect.^^  Accordingly,  the  language  of  the  instrument  be- 
ing such  as  to  vest  in  the  grantee  an  estate  free  from  anv 
condition  subsequent  or  limitation  over,  it  cannot  be 
shown,  under  the  pretext  of  proving  the  real  considera- 
tion, that  there  was  such  a  condition  or  limitation.*''  Ancj 
for  the  same  reason,  it  appears,  one  cannot,  after  pur- 
porting to  convey  land,  restrict  the  operation  of  the  in- 
strument by  introducing  evidence  that  it  was  agreed,  as 
part  consideration  of  the  conveyance,  that  some  part 
of  what  would  otherwise  jjass  by  the  conveyance,  the 
growing  crop  for  instance,  or  fixtures,  should  not  pass.^" 
And  the  oral  reservation  of  an  easement  cannot  be 
asserted  under  the  pretext  of  showing  the  considera- 
tion.^i 

550  (semhle);  Whitman  v.  Corley,  But  it  has  been  decided  that 
72  S.  C.  410,  52  S.  E.  49;  Tipton  though  a  money  consideration  is 
V.  Tipton,  47  Tex.  Civ.  App.  619,  recited,  it  may  be  shown  that 
105  S.  W.  830,  118  S.  W.  842;  the  conveyance  was  made  in  con- 
Martin  V.  Hall,  115  Va.  358,  79  sideration  of  a  contract  to  sup- 
S.  E.  320;  Wilfong  v.  Johnson,  port  the  grantor,  a  failure  to 
41  W.  Va.  283,  23  S.  E.  730.  comply  with  which  justified  a 
Contra,  Thompson  v.  Corrie,  57  rescission.  Martin  v.  Hall,  115 
Md.  197;  Lawson  v.  Mullinix,  104  Va.  358,  79  S.  E.  320;  Furst  v. 
Md.  156,  64  Atl.  938.  Galloway,  56  W.  Va.  246,  49  S. 
87     Ante,  this  section,  note  80.  E.    146;    Wilfong   v.    Johnson,    41 

88.  Jensen  v.  Crosby,  80  Minn.  W.    Va.    283,    23    S.    E.    730.      See 
158,    83    N.    W.    43;    Louisville    &  ante,    §    89. 

N.   R.   Co.   V.   Willbanks,    133   Ga.  90.     Adams     v.     Watkins,     103 

15.   24    L.   R.    A.    (N.    S.)    374,    17  Mich.   431,   61   N.   W.  774;    Kamm- 

Ann.  Cas.  860,  65  S.  E.  80;   Miller  rath    v.    Kidd,    89    Minn.    380,    99 

v.  Edgerton,  .'!8  Kan.   36,  15   Pac.  Am.  St.   Rep.  603,  95  N.  W.  213: 

894.  Stewart    v.    McArthur,    77    Iowa. 

89.  Erfurth      v.      Erfurth,      90  ]r,2.   41   N.  W.   604. 

Wash.   521,  156  Pac.  523.  91.     Louisville   &    N.    R.    Co.    v. 


1632  Real  Property.  [§  438 

In  accordance  with  the  rule  above  referred  to,  that 
evidence  of  the  consideration  is  not  admissible  in  con- 
tradiction of  a  clause  of  the  conveyance  intended  to 
have  a  contractual  or  other  legal  etfect,  are  decisions 
that,  when  the  instrument  contains  a  covenant  against 
incumbrances  or  of  warranty  it  cannot  be  shown  that, 
as  part  consideration  for  the  conveyance,  the  grantee 
orally  assumed  the  payment  of  a  particular  incum- 
brance, not  excepted  in  terms  from  the  covenant,  since 
this  involves  a  direct  contradiction  of  the  language  of 
the  covenant/-'^  It  must  be  conceded,  how^ever,  that  there 
are  a  considerable  number  of  decisions  to  an  opposite 
effect,  that  the  grantee's  oral  assumption  of  an  in- 
cumbrance may  be  showai  to  affect  the  liability  under 
the  covenant  against  incumbrances.^^  Occasionally  these 
latter  decisions  are  based  on  the  theory,  a  sound  one,  it 
would  seem,^^  that  the  assumption  merely  serves  to  aid 
in  the  construction  of  the  covenant,  but  some  are  based 
on  the  theory  that  it  serves  to  show^  the  consideration. 
If  evidence  of  a  contract  which  involves  a  direct  con- 

Willbanks,    24    L.    R.    A.    (N.    S.)  Lamoille     County     Sav.     Bank    & 

375,    133    Ga.    15,    65    S.    E.    86:  Trust   Co.   v.   Belden,   90   Vt.    535. 

Schrimper  v.  Chicago   M.   &  S.  &  98  Atl.  1002;  Patterson  v.  Cappon, 

P.  R.  Co.,  115  Iowa,  35,  82  N.  W.  125  Wis.  198,  102  N.  W.  1083. 

916,    87    N.    W.    731;     Pickett    v.  93.     Henderson    v.    Tobey,     106 

Mercer,   106   Mo.   App.    689,    80   S.  111.  App.  154;  Carver  v.  Louthain, 

W.    285;    Trout   v.    Norfolk   &  "7/.  38    Ind.    530;    Hays   v.    Peck,    107 

R.   Co..  107   Va.   576,   17  L.  R.   A.  Ind.    389,   8   N.    E.    274;    Blood   v. 

(N.   S.)    702,   59   S.   E.    394;    Mat-  Wilkins,    43    Iowa,    565;    Wachen- 

tism    V.    Chicago    etc.,    R.    C,    42  dorf  v.   Lancaster,    66    Iowa,   458, 

Neb.    545,    60    N.    W.    925.  23  N.  W.  522;    Burnham  v.  Dorr, 

92.     Johnson     v.     Walter,      6Qi  72  Me.  198;    Landman  v.  Ingram, 

Iowa,   315,    14  N.   W.   325;    Flynn  49    Mo.    212;    Gill    v.    Ferrin.    71 

V.    Bourneuf,    143    Mass.    277.    58  N.  H.  421,  52  Atl.  558;   Deaver  v. 

Am.     Rep.     138.     9     N.     E.     815;  Deaver,    137   N.    C.    240,   49    S.   E. 

Simanovich    v.    Wood,    145    Mass.  113;    Johnston    v.    Markle    Paper 

180.  13  N.  E.  391:  Edison  Electric  Co.,  153  Pa.   St.  195,  25  Atl.  560. 

Illuminating  Co.  v.  Gibby  Foundry  885;    Johnson   v.   Elmen,    94   Tex. 

Co.,  194  Mass.  259,  80  N.  E.  479;  168,  52  L.  R.  A.   162,  86  Am.   St. 

Burns  v.  Schreiber,  43  Minn.  468,  Rep.  845,  59  S.  W.  253. 

45,  N.  W.  861;   Rooney  v.  Kornig.  94.     Post.    §    452.    note   42a. 
80    Minn.    483,    83    N.    W.    399; 


§  439]  Transfer  Inter  Vivos.  1633 

tradictioii  of  an  operative  part  of  an  instrument  is  ad- 
missible merely  because  it  serves  to  show  the  considera- 
tion received  by  one  or  the  other  of  the  parties,  contracts 
contradictory  of  other  parts  may  also  be  shown,  and 
in  this  way  "a.  solemn  and  executed  written  contract 
would  be  totally  eaten  away."^^''*' 

§  439.  Reality  of  consent— Mistake.  While  a  con- 
veyance is  presumed  to  have  been  made  with  the  full 
and  free  consent  of  the  grantor,  and  correctly  to  em- 
body his  intention,  it  may  be  shown  that  this  is  not  the 
case,  by  reason  of  mistake,  fraud,  duress,  or  undue 
influence. 

If  the  parties  are  in  agreement  as  to  what  they  wish 
and  intend  to  do,  but  there  is  a  mistake  in  the  prepara- 
tion of  the  instrument,  so  that  it  fails  correctly  to 
embody  their  intention,  equity  will  reform  or  rectify  the 
instrument  accordingly.*^^  And  so  a  mistake  in  the 
words  in  the  conveyance  limiting  the  interest  in  the  land 
which  it  was  agreed  should  be  conveyed  may  be  correct- 
ed, as  when  there  is  an  omission  of  words  of  inheri- 
tan^^e.''^     Likewise,   the   fact   that  the   conveyance   pur- 

95-96.     See    Baum    v.    Lynn,    72  150;    Bank  of  Union  v.   Redwine, 

Miss.  932,  30  L.  R.  A.  441,  18  So.  171    N.     C.     559,     88     S.     E.    878; 

428.  Huss     V.     Morris,     63     Pa.     367; 

97.     Ivinson    v.    Hutton,    98    U.  Melott  v.  West,  76  W.  Va.  739,  86 

S.    79,    25    L.    Ed.    66;    Brown    v.  S.   E.   759. 

Cranberry    Iron    &    Coal    Co.,    84  98.     Chamberlain  v.   Thompson, 

Fed.    930,   28   C.   C.   A.   567;    Allia  10    Conn.    243,    26   Am.    Dec.   390; 

T.  Hall,  76  Conn.  322,  56  Atl.  637;  Kyner    v.    Boll,    182    111.    171,    54 

Kerr   v.   Couper,    5   Del.   Ch.   507;  N.    E.    925;    Drum    v.    Drum,    251 

Gruing  V.  Richards,  23  Iowa,  288;  ill.  232,  95  N.  .E.  1071;  Whittaker 

Canedy  v.  Marcy,  13  Gray  (Mass.)  v.  Lewis,  264   Mo.   208,  174  S.  W. 

373;    Benson  v.   Markoe,  37  Minn.  369;    McMillan    v.    Fish,    29    N.    J. 

30,  5  Am.  St.  Rep.  816.  33  N.  W.  Eq.  610;    Higinbotham  v.   Burnet.. 

38;    Sparks   v.    Pittman,    51    Miss.  5  Johns  Ch.    (N.  Y.)   184;   Henley 

511;     Barataria    Canning    Co.     v.  y.  Wilson,  77  N.  C.  216;    Clayton 

Ott,    88    Miss.    771.    41    So     378;  v.  Freet,   10  Ohio  St.   544;    Brock 

Leitensdorfer    v.    Delphy,    15    Mo.  v.   O'Dell,    44    S.    C.    22,    21    S.    E. 

160,    55   Am.    Dec.    137;    Grant    v.  976;      Lardner     v.     Williams,     98 

Baird,   61   N.    J.   Eq.   389,   49    Atl-  Wis.   514,   74   N.   W.   346. 


1634 


Real.  Property. 


[^  439 


ports  to  convey  land  other  than  that  which  both  parties 
intended  should  be  conveyed,  or  that  the  land  as  con- 
veyed differs  from  that  sold,  is  ground  for  refor- 
mation.^^ 

Occasionally  it  is  stated  that,  in  order  to  justify 
the  reformation  of  an  instrument  as  not  correctly  ex- 
pressing the  agreement  of  the  parties,  there  must  have 
been  a  mutual  mistake  in  the  preparation  of  the  instru- 
ment.^ This,  however,  appears  questionable.  If  the  in- 
strument fails  correctly  to  express  the  agreement  of 
the  parties,  there  should  be  a  right  to  have  it  reformed, 
regardless  of  the  person  or  persons  whose  mistake 
caused  this  result.^ 

If  the  instrument  as  executed  expresses  the  agree- 
ment of  the  parties,  it  is  no  ground  for  reformation 
that  in  arriving  at  such  agreement  both  parties  labored 
under  the   same  misconception.^     Nor  will  the   instru- 


99.  Tillis  V.  Smith,  108  Ala. 
264,  19  So.  374;  Felton  v.  Leigh, 
48  Ark.  498,  3  S.  W.  638;  Stevens 
V.  Holman,  112  Cal.  345,  53  Am. 
St.  Rep.  216,  44  Pac.  670;  Earth 
V.  Deuel,  11  Colo.  494,  19  Pac. 
471;  Barnes  v.  Peterson,  136  Ga. 
364,  71  S.  E.  163;  Keeley  v. 
Sayles,  217  111.  589,  75  N.  E.  567; 
Baker  v.  Pyatt,  108  Ind.  61,  9 
N.  E.  112;  BottorfE  v.  Lewis,  121 
Iowa,  27,  95  N.  W.  262;  Critch- 
field  V.  Kline,  39  Kan.  721,  18 
Pac.  898;  Holbrook  v.  Schofield, 
211  Mass.  234,  98  N.  E.  97; 
Fisher  v.  Dent,  259  Mo.  86,  167 
S.  W.  997;  Blair  v.  McDonnell, 
5  N.  J.  Eq.  327;  Bush  v.  Hicks, 
60  N.  Y.  298;  Pelletier  v.  Inter- 
state Cooperage  Co.,  158  N.  C. 
403,  74  S.  E.  112;  CarroU  v. 
Ryder,  34  R.  I.  383,  83  Atl.  845; 
Walkeff  V.  Dunlop,  5  IHayw. 
(Tenn.)  271.  9  Am.  Dec.  787; 
Abbott    V.    Flint's    Adm'r,    78    Vt. 


274,  62  Atl.  721;  Carlson,  v. 
Druse,  79  Wash.  542,  140  Pac. 
570;  Baxter  v.  Tanner,  35  W. 
Va.  60,  12  S.  E.  1094;  Fuchs  v. 
Treat,    41    Wis.    404. 

1.  Chapman  v.  Lambert,  176 
Ind.  461,  96  N.  E.  459;  Dough- 
erty V.  Dougherty,  204  Mo.  228, 
102  S.  W.  1099;  Robinson  v. 
Korns,  250  Mo.  663,  157  S.  W. 
790;  Welles  v.  Yates,  44  N.  Y. 
525;  Waslee  v.  Rossman,  231  Pa. 
219,  80  Atl.  643;  R.  M.  Cobban 
Realty  Co.  v.  Chicago,  M.  & 
St.  P.  R.  Co.,  52  Mont.  256; 
157  Pac.  173;  6  Pomeroy  Eq. 
Jur.    §   675. 

2.  See  11  Columbia  Law  Rev. 
at  p.  301,  article  by  Roland  R. 
Foulke,    Esq. 

3.  Holland  Blow  Stave  Co.  v. 
Barclay,  193  Ala.  200,  69  So.  118: 
Toops  v.  Snyder,  70  Ind.  554; 
Wise  v.  Brooks,  69  Miss.  891, 
13     So.     836;     Pittsburg     Lumber 


§  439] 


Teansfee  Inter  Vivos. 


1635 


ment  be  reformed,  if  made  on  a  valuable  consideration, 
merely  because  it  fails  to  accord  with  the  intention  or 
expectation  of  one  party,  provided  it  accords  with  the 
intention  of  the  other,  and  with  the  terms  of  the  agree- 
ment between  them.^ 

The  fact  that  the  failure  of  the  instrument  as  writ- 
ten to  embody  the  intention  of  the  parties  arises  from 
a  mistake  of  law,  as  distinguished  from  a  mistake  of 
fact,  does  not  prevent  a  reformation  of  the  instrument 
to  accord  with  the  trae  intention  of  the  parties.^  But  on 
the  other  hand,  if  the  parties,  by  reason  of  a  mistake 
of  law,  deliberately  select  a  particular  form  of  instru- 
ment, or  deliberately  insert  particular  language  therein, 
neither  of  them  can  afterwards  assert  that  the  instru- 
ment as  executed  does  not  represent  their  agreement.*' 
In  other  words,  if  the  conveyance  is  in  the  form  agreed 


Co.   V.    Shell,    133    Tenn.    466,    189 
S.    W.    879. 

4.  James  Holcombe  &  Rain- 
water V.  Furr,  126  Ark.  '251, 
190  S.  W.  444;  Ruby  v.  Ewlng. 
49  Ind.  App.  520,  97  N.  E.  798; 
Allen  V.  Roanoke  R.  &  Lumber 
Co.,  171  N.  C.  339,  88  S.  E. 
492;  R  D.  Johnson  Milling  Co. 
V.  Read,  76  W.  Va  557,  85  S. 
E.    726. 

5.  Orr  V.  Echols,  119  Ala.  340, 
24  So.  357;  Haussman  v.  Burn- 
ham,  59  Conn.  117,  21  Am.  St. 
Rep.  74,  22  Atl.  1065;  Parish 
V.  Camplin,  139  Ind.  1,  37  N.  E. 
607;  Bonbright  v.  Bonbrigiht. 
123  Iowa,  305,  98  N.  W.  784; 
Lear  v.  Prather,  89  Ky.  501,  12 
S.  W.  946;  Wall  v.  Meilke,  89 
Minn.  232,  94  N.  W.  688;  Sparks 
V.  Pittman,  51  Miss.  511;  Cor- 
rigan  v.  Tiernay,  100  Mo.  276. 
13  S.  W.  401;  Plnkham  v.  Pink- 
ham,  60  Neb.  600,  83  N.  W. 
837;     Green    v.    Morris    &    E.    R. 


Co.,  12  N.  J.  Eq.  165;  Kornegay 
V.  Everett,  99  N.  C.  30,  5  S. 
E.  30;  Evants  v.  Strode's  Adm'r, 
11  Ohio  480,  38  Am.  Dec.  741; 
Brock    V.    O'Dell,     44     S.    C.     22, 

21  S.    E.    976;     State    v.    Lorenz, 

22  Wash.  289,  60  Pac.  644;  Biggs 
V.  Bailey,  49  W.  Va.  188,  33  S. 
E.  499;  Whitmore  v.  Hay,  85 
Wis.  240,  39  Am.  St.  Rep.  838, 
55  N.  W.  708.  Contrn,  Fowler  v. 
Black,  136  III.  363,  11  L.  R.  A. 
670,   26   N.   E.   596. 

6.  Hunt  V.  Rhodes,  1  Pet  (U. 
S.)  1.  7  L.  Ed.  27;  Gordere  v. 
Downing,  18  111.  492;  Dever  v. 
Dever,  19  Ky.  L.  Rep.  1988,  44 
S.  W.  986;  Farley  v.  Bryant, 
32  Me.  474;  Durant  v.  Bacot,  13 
N.  J.  Eq,  201;  Lanning  v. 
Carpenter,  48  N.  Y.  408;  Morton 
V.  Morris,  27  Tex.  Civ.  App. 
262,  66  S.  W.  94;  2  Pomeroy. 
Eq.  Jur.  §  843;  Pollock,  Con- 
tracts   (Williston's    Ed.)    576. 


1636  Eeal  Property.  [<§  -439 

on,  the  fact  that,  had  the  parties  understood  the  law,  a 
ditf erent  form  would  have  been  agreed  on,  is  not  ground 
for  reformation,  while  if  the  form  of  conveyance  was 
not  agreed  on,  but  merely  the  end  to  be  attained  by 
the  conveyance,  the  fact  that  this  end  is,  by  reason  of 
a  mistake  of  law,  not  attained  by  the  conveyance  ac- 
tually executed,  may  be  ground  for  reformation. 

If  the  conveyance  is  purely  voluntary,  that  is,  if 
it  represents  a  mere  gift  as  distinguished  from  a  sale, 
the  donor  is  ordinarily  entitled  to  a  reformation  on 
account  of  his  own  mistake,  regardless  of  whether  the 
mistake  was  shared  in  by  the  donee.'  On  the  other 
hand,  if  the  conveyance  is  not  based  on  a  valuable,  or  at 
least  a  meritorious  consideration,  relief  will  not  be 
given  as  against  the  donor  while  living,^  and,  according 
to  the  weight  of  authority,  it  will  not  be  given  as  against 
the  heirs  or  devisees  of  a  deceased  donor  by  reason  of 
the  failure  of  the  langiiage  of  the  conveyance  to  ex- 
press the  donor's  probable  intention.^ 

A  contract  for  the  sale  of  land,  as  any  other  con- 
tract, may  be  made  under  such  a  mistaken  assumption  on 
the  part  of  both  parties  as  to  justify  relief  therefrom 
in  equity  at  the  suit  of  either  of  them,  and  the  fact  that 
a   conveyance    is   made    in    pursuance    of    the    contract 

7.  Jones  v.  McNealy,  139  Ala.  Gwyer  v.  Spaulding,  33  Neb.  573, 
379,    35     So.     1022;     Manfredo    v.       50  N.  W.  681. 

Manfredo,    191    Ala.    322,    68    So.  9.     Enos    v.    Stewart,    138    Cal. 

157,  (mistakes  as  to  legal  effect)  ;  112,     70     Pac.     1005;     Powell     v. 

Mitchell    V.    Mitchell,    40    Ga.    11;  Powell,    27    Ga.     36;     Strayer    v. 

Crockett     v.      Crockett,     73     Ga.  Dickerson,   205   111.   257,   68  N.   E. 

647;    Day  v.   Day,    84   N.   C.    408;  767;    Else    v.    Kennedy.    67    Iowa, 

Coale  V.   Merryman,   35  Md.   382;  376,   25   N.   W.   290;    Comstock   v. 

Mulock   V.    Mulock,    31    N.    J.    Eq.  Cook,  135  Ind.  642,  35  N.  E.  909; 

594;     Ferrell    v.    Ferrell,    53    W.  Miller    v.     Beardslee,     175     Mich. 

Va.    515,    44    S.    E.    187;     6    Pom.  414,    141    N.    W.    566;     Powell    v. 

Eq.    Jur.    §    679;     23    Harv.    Law  Morisey,   98   N.   C.   42,    2   Am.   St. 

Rev.   at  p.  620,   article  by  Edwin  Rep.  343,  6,  4  S.  E.  185;   Hout  v. 

H.    Abbott,    Jr.,    Esq.  Hout,    20    Ohio    St.    119;     Willey 

8.  Lister  v.  Hodgson,  L.  R.  v.  Hodge,  104  Wis.  81,  76  Am.  St. 
4  Eq.  30;  Shears  v.  Westover,  Rep.  852.  80  N.  W.  75;  Contra 
110    Mich.    505,    68    N.    W.    266;  Mattingly      v.      Speak,      4      Bush 


§  439]  Transfer  Inter  Vros.  IBS'? 

would  not  ordinarily  affect  tlie  right  to  relief.  ^\nietlier 
there  was  a  mistake  justifying  such  relief  is  frequently 
a  difficult  question,  but  it  is  properly  one  of  the  law  of 
contracts,  and  calls  for  discussion  in  a  work  on  that 
subject  rather  than  in  one  on  the  law  of  land.^^  Wheth- 
er, for  instance,  a  mistaken  supposition  indulged  in  l)y 
both  the  parties  as  to  the  character  or  value  of  the  land 
sold,  or  a  misunderstanding  between  them  as  to  the 
identity  of  the  land,  is  ground  for  rescinding  the  con- 
veyance and  relieving  the  grantee  from  liability  for  the 
purchase  money,  is  determined  by  the  consideration 
whether  it  would  have  been  ground  for  rescinding  the 
contract  of  sale  in  pursuance  of  which  the  conveyance 
was  made.  So  when  the  conveyance  is  not  made  in 
pursuance  of  a  prior  contract  of  sale,  but  the  execution 
of  the  conveyance  constitutes  the  proposal  or  accep- 
tance of  an  agreement  for  the  sale  of  the  land,  the 
right  to  a  rescission  of  the  conveyance  on  the  ground 
of  mistake  is  determinable  by  the  consideration  Avhether 
the  mistake  is  such  that  it  would  have  afforded  relief 
from  an  executory  contract  of  sale  under  like  circum- 
stances. It  may  happen,  however,  that  a  conveyance 
is  executed,  not  by  way  of  sale  but  by  way  of  gift,  and 
then  the  j^rinciples  which  apply  in  the  case  of  a  contract 
are  not  adapted  to  determine  the  rights  of  the  parties. 
Whether,  in  such  a  case,  that  of  a  purely  voluntary 
conveyance,  the  grantor  will  be  relieved  therefrom  be- 
cause, while  it  conforms  with  the  actual  intention  of  the 
grantor,  such  intention  is  itself  based  on  a  mistaken 
supposition  as  to  the  existence  or  non  existence  of  a 
particular  fact,  is  a  question  as  to  which  there  appears 
to  be  but  little  explicit  authority.  It  would  seem,  how- 
ever, that  the  donor  will  not  be  relieved  by  reason  of 

(Ky.)     316;     Huss    v.    Morris,    63  sion    of    this    matter    is    found    in 

Pa.    367;    McMechan    v.    Warbur-  two  articles  by  Roland  R.  Foulke, 

ton   [1896]   1  I.  R.  435.  Esq.    in    11    Columbia    Law    Rev. 

10.     What  appears  to  the   writ-  at  pp.  197,  299. 
er    the    most    satisfactory    discus- 


1638  Real  Property.  [§  439 

sucli  a  mistake  on  liis  part,  not  induced  by  the  donee. ^^ 
That  a  gift  is  not  ordinarily  revocable  is  generally 
recognized,  and  yet  in  but  few  cases,  presumably,  could 
the  donor  seeking  to  revoke  not  assert  that  he  made  the 
gift  under  a  mistaken  impression,  as  regards  the  merits 
of  the  donee,  for  instance,  or  his  own  ability  to  dispense 
with    the    subject    of    the    gift. 

That  the  grantor,  at  the  time  of  his  execution  of 
the  conveyance,  mistakenly  supposed  it  to  be  some  other 
character  of  instrument,  is  sufficient  to  justify  its  can- 
cellation, provided  at  least  his  mistake  was  not  the 
result  of  negligence  on  his  part.^^  In  such  a  case  the 
instrument  is  not  that  which  the  grantor  intended  to 
deliver  and  it  is  consequently  not  his  deed,^^  though, 
as  just  indicated,  negligence  on  his  part  may  operate 
to  prevent  him  from  asserting  that  he  did  not  intend  to 
execute  the  character  of  instrument  which  he  did  ex- 
ecute.^* In  determining  the  existence  of  negligence  vel 
non  for  the  purpose  of  determining  whether  one  is 
bound  by  his  execution  of  an  instrument,  a  distinction 
is  quite  frequently  asserted  between  the  case  of  a  grant- 
or or  obligor  who  is  able  to  read,  and  that  of  one  who 
is  unable  to  read,  a  person  of  the  latter  description 
being  entitled  to  relief  if  the  instrument  was  not  prop- 
erly explained  to  him,  provided  at  least  he  sought  to 
have  it  explained, ^^  while  a  person  of  the  former  de- 
scription is  usually  negligent  if  he  fails  to  read  it.^® 

11.  See,  to  that  effect,  Kerr,  A.  358;  Robinson  v.  Glass,  94 
Fraud  &  Mistake  (4th  ed.)  199;  Ind.  211;  Roach  v.  Karr,  18  Kan. 
Pickslay  v.  Starr,  149  N.  Y.  529;  Leddy  v.  Barney,  139  Mass. 
432,  32  L.  R.  A.  703,  52  Am.  St.  394,  2  N.  E.  107;  Hallenbeck 
Rep.   740,   44   N.   E.   163  v.  Dewitt,^  2  Johns.    (N.  Y.)    404; 

12.  Hammon,  Contracts,  §  93;  Providence  Twp.  v.  Kesler,  67 
4  Wigmore,   Evidence,   §   2416.  N.    C.    443;    Weller's    Appeal,    103 

13.  Harriman,  Contracts  (2nd  Pa.  594;  Sheppard's  Touchstone, 
ed.),    §    80.  56. 

14.  Pollock,  Contracts  (Willie-  16.  Dawson  v.  Burrus,  73  Ala. 
ton's  Edition)    587.  Ill;    McHenry    v.    Day,    13    Iowa 

15.  Chicago,  etc.,  R.  Co.  v.  445,  81  Am.  Dec.  438;  Van  Sick- 
Belliwith,    83    Fed.    437,    28    C.    C.  les    v.    Town,    53    Iowa,    259;    El- 


'^  439]  Transfer  Inter  Vivos.  1639 

Fraud.     The  making  of  the  conveyance  by  the 


grantor  may  have  been  induced  by  some  fraudulent 
misrepresentation  on  the  part  of  the  grantee,  or,  which 
is  in  etfect  the  same,  the  conveyance  may  have  been 
made  by  way  of  compliance  with  a  contract  of  sale 
which  was  induced  by  fraudulent  misrepresentation. 
A  vendor's  right  to  repudiate  a  bargain  obtained  from 
him  by  fraud  is  not  lost  by  the  fact  that  he  has  executed 
a  conveyance  is  accordance  with  the  bargain,  unless  he 
did  this  with  knowledge  of  the  fraud,  so  as  to  justify  a 
finding  that  he  waived  his  rights  in  this  regard.  The 
execution  of  the  conveyance  is  material  only  in  so  far  as 
it  renders  it  necessary  for  the  vendor  (grantor),  in 
order  to  obtain  complete  relief,  to  effect  a  cancellation 
of  the  conveyance,  and  this  he  can  do,  ordinarily,  only 
by  recourse  to  a  court  of  equity.  The  grantor  may, 
moreover,  be  entitled  to  a  cancellation  of  the  convey- 
ance by  reason  of  a  fraud  connected,  not  with  nego- 
tiations for  the  sale  by  him  of  the  property,  but  with 
the  execution  of  the  conveyance,  as  when  the  grantee 
intentionally  misstates  to  him  the  effect  of  the  convey- 
ance, or  intentionally  causes  him  to  execute  an  instru- 
ment other  than  that  which  he  intends  to  execute. ^'^ 

Duress.     A  conveyance  may  be  set  aside  be- 


cause executed  by  the  grantor  under  duress.  Duress,  as 
recognized  by  the  modern  decisions  consists,  it  has  boon 
said,  in  the  actual  or  threatened  unlawful  exercise  of 
power  possessed,  or  believed  to  be  possessed,  by  one 
party,   over  the  person   or  property  of   another,   from 

dridge    v.    Dexter    &    P.    R.    Co.,  lock.  Contracts,    (Williston's  Ed.) 

88  Me.  191,  33  Atl.  974;    Jackson  583.      Compare    cases    cited    5    A. 

V.  Croy,  12  Johns.  (N.  Y.)  427;  &  E.  Ann.  Cas.  215,  11  Id.  1164. 
Witthaus  V.   Schack,  57  How.  Pr.  17.     As    to    fraud    as    a    ground 

310;    Powers    v.    Powers,    46    Ore.  for  rescission  or  cancellation,  see 

479,  80  Pac.  1058;    Picton  v.  Gra-  Pollock,     Contracts      (Williston's 

ham,     2     Desauss     (S.     C.)     592;  Ed.)   646-726;    2  Pomeroy,  Equity, 

Gibson     v.     Brown,      (Tex.     Civ.  §  872  et  seq;  Hammon,  Contracts, 

App.)    24   S.   W.   574.     See  Harri-  §    117   et   seq. 
man.    Contracts,    §§    77,    78;    Pol- 


.T(;40  Real  Pkopeety.  [§  439 

wliicli  the  latter  lias  no  means  of  immediate  relief  other 
than  by  performing  the  required  act.^^  It  ordinarily 
involves  either  threats  of  bodily  injury,  threats  of  im- 
prisonment, or  actual  imprisonment,  though  by  a  num- 
ber of  cases  threats  of  detention  of  or  injury  to  goods 
have  been  regarded  as  sufficient  for  this  purpose. ^^ 

Undue  influence.     A  conveyance  may  also  be 

set  aside  on  account  of  undue  influence  exerted  upon  the 
grantor.  Any  influence  brought  to  bear  upon  a  person 
entering  into  an  agreement,  or  consenting  to  a  disposal 
of  property,  which,  having  regard  to  the  age  and  ca- 
pacity of  the  party,  the  nature  of  the  transaction,  and 
all  the  circumstances  of  the  case,  appears  to  have 
been  such  as  to  preclude  the  exercise  of  free  and  delib- 
erate judgment,  is  considered  by  courts  of  equity  to  be 
undue  influence,  and  is  a  ground  for  setting  aside  the 
act  procured  by  its  employment.  The  fact  that  the 
parties  stand  in  such  a  position  towards  one  another, 
either  by  reason  of  relationship,  professional  employ- 
ment, or  otherwise,  that  the  grantor  is  peculiarly  sus- 
ceptible to  the  exertion  of  influence  by  the  grantee,  is  a 
consideration  of  primary  importance  in  this  connection, 
in  cases  where  the  transaction  is  in  itself  improvident  or 
disadvantageous  to  the  grantor.  And  the  fact  that  the 
grantor  is  lacking  in  such  mental  vigor  as  to  enable 
him  to  protect  himself  against  imposition  is  a  reason 
for  the  interposition  of  equity  to  protect  him,  although 
his  mental  weakness  is  not  such  as  to  justify  him  in 
being  regarded  as  totally  incapacitated.-'- 

In  some  cases  threats  which  are  of  such  a  character 
as  to  be  insufficient  to  constitute  duress  as  understood 
at  common  law,  may  constitute  undue  influence  for  the 

18.  Harriman,    Contracts,  §  445.  Law  Rev.   255. 

19.  The  authorities  are  collect-  20.  Pollock,  Contracts  (7th 
ed  in  Pollock,  Contracts  (Willis-  Ed.)  600.  See  Hammon,  Con- 
ton's  Ed.)  728-732;  1  Black,  Res-  tracts,  §  138  et  seq;  1  Black, 
cission  &  Cancellation,  ch.  9.  Rescission  &  Cancellation,  eh. 
And   see   editorial   note    26    Harv.  10. 


§  44()J  Transfer  Inter  Vivos.  1641 

purjDose  of  a  court  of  equity,  so  as  to  justify  a  rescis- 
sion of  the  conveyance.  If  a  wife  executes  a  conveyance 
by  reason  of  her  husband's  threats  of  physical  injury, 
the  conveyance  may  be  set  aside  as  having  been  pro- 
cured by  duress,  while  if  she  executes  it  by  reason  of 
her  husband's  threats  of  abandonment,  it  is,  it  is  said,  a 
case  of  undue  influence.^ ^ 

§  440.  Effect  of  alterations.  Since  the  conveyance 
takes  effect  only  upon  delivery,^^  until  that  is  effected, 
the  grantor  may  make  such  alterations  or  insertions 
therein  as  he  may  desire.-^ 

An  alteration  made,  after  delivery,  by  consent  of 
all  the  parties  to  the  conveyance,  is  binding  and  effective 
if  it  is  followed  b}^  a  new  delivery  of  the  instrument,"^ 
in  so  far  as  no  proprietary  rights  vested  in  the  grantee 
by  the  conveyance  as  it  originally  stood  are  divested  by 
such  alteration,-^  and  subject  to  the  qualification  that 
the  subsequent  record  of  the  conveyance  does  not  affect 
an  innocent  third  person  with  notice  of  the  alteration 
unless  it  was  acknowledged  after  the  alteration.^^  The 
new  delivery,  in  such  case,  would  ordinarily  be  inferred, 

21.  Pollock,  Contracts,  (Willis-  488,  82  Am.  St.  Rep.  470,  59 
ton's  Edition)    729,   note.  N.    E.    958;    Tucker   v.    Allen,    16 

22.  Post,   §   461.  Kan.    312;    Bassett   v.    Bassett,   55 

23.  Sheppard's  Touchstone,  55;  Me.  127;  Byers  v.  McClanahan, 
Miller  v.  Williams,  27  Colo.  34,  6  Gill  &  .T.  (Md.)  250;  Burns  v. 
59  Pac.  740:  Tharp  v.  Jamison,  Lynde,  6  Allen  (Mass.)  305; 
154  Towa  77,  39  L.  R.  A.  (N.  Fitzpatrick  v.  Fitzpatrick,  6  R. 
S.)     100,    134    N.    W.    58.T;    Coney  I.  64,  75  Am.  Dec.   681. 

V.    Laird,    153    Mo.    408.    55    S.   W.  25.     See   post,    §    465. 

96;    Reformed    Dutch    Church    of  26.     Moelle    v.     Sherwood,     148 

North    Branch    v.    Ten    Eyck,    25  U.   S.   21,   37   L.   Ed.   350;    Sharpe 

N.    J.    Law,    40;    Wetherington   v.  v.    Orme,    61    Ala.    263;    Webb    v. 

Williams,    134    N.    C.    276,    46    S.  Mullins,    78    Ala.    Ill;    Wagle    v. 

E.  728;   Duncan  v.  Hodges,  4  Mc-  Towa    State    Bank,    175    Iowa    92, 

Cord     (S.    C.)    239,    17    Am.    Dec.  156  N.  W.  991;   Collins  v.  Collins, 

734.  51    Miss.    311,    24    Am.    Rep.    632; 

24.  Mularin  v.  United  States,  1  See  Coit  v.  Starkweather,  8 
Wall.  (U.  S.)  282,  17  L.  Kd.  Conn.  289.  Waldron  v.  Waller, 
594;  Stiles  v.  Probst,  69  III.  65  W.  Va.  605,  32  L.  R.  A.  (N. 
382;     Abbott    v.    Abbott,    189    111.  S.)     285,    64    S.    E.    964. 


1G42 


Real  Propekty. 


[§  440 


it  appears,  from  the  fact  that  the  grantor  makes  or  ap- 
proves the  alteration,  such  fact,  taken  in  connection 
with  the  fact  of  the  prior  delivery,  serving  to  show  an 
intention  that  the  instrument  shall  be  operative  as  al- 
tered.^" There  is,  however,  considerable  difficulty  in 
inferring  a  new  delivery  Aj/hen  the  grantor  merely  con- 
sents to  the  alteration,  which  is  made  out  of  his  pres- 
ence, especially  if  he  does  nothing  thereafter  to  indicate 
his  intention  that  the  instrument,  as  altered,  shall  op- 
erate as  his  act  and  deed.^^ 

An  alteration  made  after  the  delivery  of  the  convey- 
ance is  absolutely  nugatory  to  divest  property  rights 
vested  in  the  grantee  by  the  conveyance.^^  The  opera- 
tion of  the  instrument  as  a  conveyance  becomes,  after 
delivery,  a  thing  of  the  past,  and  the  fact  that  the  in- 
strument is  then  altered,  or  even  that  it  is  destroyed,^" 


27.  Speake  v.  United  States, 
9.  Crouch  (U.  S.)  28,  3  L.  Ed. 
645;  Woodbury  v.  Allegheny  & 
K.  R.  Co.,  72  Fed.  371;  Pretty- 
man  V.  Goodrich.  23  111.  330; 
Tucker  v.  Allen,  16  Kan.  312; 
Coney  v.  Laird,  153  Mo.  408.  55 
S.  W.  96;  Wooley  v.  Constant, 
4  Johns.  (N.  Y.)  54,  4  Am.  Dec. 
246;  Martin  v.  Buffaloe,  121  N. 
C.  34,  27  S.  E.  995;  Barrington 
V.  Branch,  14  Serg.  &  R.  (Pa.) 
405;  Bryant  v.  Bank  of  Charles- 
ton, 107  Tenn.  560,  64  S.  W. 
895. 

28.  See  Davenport  v.  Sleight, 
19  N.  C.  381;  Burns  v.  Lynde,  6 
Allen  (Mass.)  305.  Bowen,  L,. 
J.,  in  Powell  v.  London  &  Prov- 
incial Bank  [1893]  2  Ch.  at  p. 
563;  Martin  v.  Hanning,  26  Up. 
Can.   Q.   B.   80. 

29.  Doe  d.  Lewis  v.  Bingham, 
4  Barn.  &  Aid.  672;  Alabama 
State  Land  Co.  v.  Thompson, 
104    Ala.    570,    53    Am.    St.    Rep. 


80,  16  So.  440;  Faulkner  v. 
Feazel,  113  Ark.  289,  168  S.  W. 
568;  Gibbs  v.  Potter,  166  Ind. 
471,  77  N.  ■  E.  942;  Hollings- 
worth  v.  Holbrook,  80  Iowa,  151, 
20  Am.  St.  Rep.  411,  45  N.  W. 
561;  Hunt  v.  Nance,  122  Ky.  274, 
92  S.  W.  6;  Chessman  v.  Whitte- 
more,  23  Pick.  (Mass.)  231; 
Robbins  v.  Hobart,  133  Minn.  49, 
157  N.  W.  908;  Collins  v.  Col- 
lins, 51  Miss.  311.  24  Am.  Rep. 
662;  Woods  v.  Hilderbrand,  46  Mo. 
284,  2  Am.  Rep.  513;  Jackson  v. 
Jacoby,  9  Cow.  (N.  Y.)  125; 
Rifener  v.  Bowman,  53  Pa.  St. 
.".13;  Booker  v.  Stivender,  13 
Rich.  (S.  C.)  85:  Stanley  v. 
Epperson,  45  Tex.  645;  North  v. 
Henneberry,   44    Wis.    306. 

30.  See  the  full  discussion  of 
the  whole  subject  in  18  Harv. 
Law  Rev.  at  pp.  105,  165.  article 
by  Professor  Samuel  Williston. 
See  also  post  §  465. 

The    question    of    the    validity 


§  440]  Transfer  Inter  Vivos.  1643 

cannot  well  affect  the  property  rights  which  it  has  pre- 
viously vested  in  the  grantee.  In  former  times  a  dis- 
tinction was  said  to  exist  in  this  regard  between  things 
which  lay  in  grant  and  those  which  lay  in  livery,  a 
material  alteration  or  a  cancellation  of  the  conveyance 
heing  regarded  as  effective  to  divest  the  grantee's  title 
in  the  latter  though  not  in  the  former  case.''^  But  such 
a  distinction  is  no  longer  recognized  in  England,"-  and 
while  it  has  been  referred  to  in  terms  of  approval  in 
two  states,^''  it  apjiears  to  be  generally  ignored.  But 
though  an  alteration  after  deliver}^  does  not  operate  to 
divest,  in  favor  of  the  grantor,  property  rights  vested 
in  the  grantee  by  the  conveyance,  it  has  the  effect,  in  a 
number  of  jurisdictions,  at  least  if  fraudulently  made, 
of  rendering  the  instrument  inadmissible  in  evidence, 
and  of  thus  indirectly  disabling  him  from  asserting  his 
rights  in  the  land.'^  Though  the  validity  of  a  convey- 
ance is  as  such  not  usually  affected  by  an  alteration  af- 
ter delivery,  any  covenant  or  other  contract  contained  in 
the  instrument,  since  it  is  executory  in  its  nature,  if? 
invalidated  by  a  material  alteration,  erasure,  or  cancel- 

of     an     attempt     to     change     the  60    Atl.    557;    Collins    v.    Ball,    82 

name   of   the   grantee   after  deliv-  Tex.    259,    27    Am.    St.    Rep.    877, 

ery    Is    referred    to    ante,    §    434  17   S.   W.   614;    Bliss  v.  Mclntyre, 

notes  81-86.  18   Vt.   466.     And   see  cases  cited 

31.  Miller  v.  Mainvaring,  Cro.  j)ost,  §  465.  Contra  Alabama 
Car.  397;  Gilbert,  Evidence  (6th  State  Land  Co.  v.  Thompson, 
Ed.)    p.    94-96.  104    Ala.    570,    53    Am.    St.    Rep. 

32.  Bolton  V.  Bishop  of  Car-  80,  16  So.  440;  Burgess  v.  Blake, 
lisle,  2  H.  Bl.  259;  Norton,  Deeds,  128  Ala.  105,  86  Am.  St.  Rep. 
29.  78,    28    So.    963.     And    see   Woods 

33.  Lewis  v.  Payne,  8  Cow.  v.  Hilderhrand,  46  Mo.  284,  2 
(N.    Y.)     71,    18    Am.    Dec.    427;  Am.    Rep.    513. 

Wallace  v.  Harmstad.   44   Pa.   St.  As  to  whether  such   an   altera- 

492.  tlon    should    operate    to    exclude 

34.  Miller  v.  Luco,  80  Cal.  the  instrument  when  offered  in 
257,  22  Pac.  195  (.statute) ;  Rob-  favor  of  a  subsequent  purchaser 
bins  V.  Magee,  76  Ind.  381;  Babb  or  creditor,  see  Pollock,  Con- 
V.  Clemson.  10  Serg.  &  R.  419;  tracts,  (Williston's  Edition),  p. 
Plitcraft    V.    Commonwealth    Title  849. 

Tns.    &    Trust    Co.,    211    Pa.    114, 


1644 


Real  Property. 


[§  440 


latioii,  made  by  the  obligee  without  the  consent  of  the 
obligor.^^  A  covenant  or  contract  in  an  instrument  of 
conveyance  stands  in  this  regard  in  the  same  position 
as  a  covenant  or  contract  in  any  other  instrument. 

An  alteration  in  a  mortgage  instrument,  made  by  the 
mortgagee  after  its  delivery,  M^thout  the  consent  of  the 
mortgagor,  has  been  decided,  in  a  number  of  cases,  to 
invalidate  the  mortgage.''"  These  decisions  are  based 
on  the  theory  that  since  the  mortgagee  has  a  lien  only, 
his  rights  are  executory  in  character,  and  consequently 
the  rule  which  makes  alterations  in  a  conveyance  in- 
effective to  divest  rights  once  vested  by  the  conveyance 
has  no  application.  On  the  other  hand  in  one  state,  in 
which  the  mortgage  vests  the  legal  title  in  the  mort- 
gagee, it  has  been  held  that,  by  reason  of  the  rule  re- 
ferred to,  a  foreclosure  proceeding  based  on  such  title 
may  be  maintained  regardless  of  the  alteration.^'^"^^  The 
correctness  of  the  decisions  that  an  alteration  invalidates 


35.  Ward  v.  Lumley,  5  Hurlst. 
&  N.  656;  Agricultural  Cattle 
Ins.  Co.  V.  Fitzgerald,  16  Q.  B. 
432;  Alabama  State  Land  Co.  v. 
Thompson,  104  Ala.  570,  53  Am. 
St.  Rep.  80,  16  So.  440;  Hol- 
lingsworth  v.  Holbrook,  80  Iowa 
151,  20  Am.  St.  Rep.  411,  45 
N.  W.  561;  Chessman  v.  Whitte- 
more,  23  Pick.  (Mass.)  231; 
Lewis  V.  Payn,  8  Cow.  (N.  Y.) 
71,  18  Am.  Dec.  427;  Withers  v. 
Atkinson,  1  Watts  (Pa.)  236; 
Wallace  v.  Harmstad,  15  Pa.  St. 
462,  53  Am.  Dec.  603;  Churchill 
V.  Capen,  84  Vt.  104,  78  Atl. 
734;  Waldron  v.  Waller,  65  W. 
Va.  605,  32  L.  R.  A.  (N.  S.) 
284,  64  S.  E.  964;  North  v. 
Henneberry,  44  Wis.  306 

36.  Murphy  v.  Purifoy,  52  Ga. 
480;  Cutter  v.  Rose,  35  Iowa 
456;  Johnson  v.  Moore,  33  Kan. 
90,   5   Pac.   406;    Russell   v.    Reed, 


36  Minn.  376,  31  N.  W.  452; 
Merchants'  &  Farmers'  Bank  v. 
Dent,  102  Miss.  455,  59  So.  805; 
Powell  V.  Banks,  146  Mo.  620, 
48  S.  W.  664;  Barnhart  v.  Little, 
(Mo.),  185  S.  W.  174;  Kime  v. 
Jesse,  52  Neb.  60-6,  72  N.  W. 
1050;  Marcy  v.  Dunlap,  5  Lans. 
(N.  Y.)  365;  Mclntyre  v.  Velte, 
153  Pa.  St.  350,  25  Atl.  739; 
Powell  V.  Pearlstine,  43  S.  C. 
403,  21  S.  E.  328;  Bowser  v. 
Cole,  74  Tex.  222,  11  S.  W. 
1131. 

37-38.  Kendall  v.  Kendall,  12 
Allen  (Mass.)  92.  And  see  Rod- 
riguez V.  kaynes,  76  Tex.  225,  13 
S.  W.  296.  Contra,  Powell  v. 
Banks,  146  Mo.  620,  48  S.  W.  664; 
Mclntyre  v.  Velte,  153  Pa.  350, 
25  Atl.  739.  And  see  Green  v. 
Sneed,  101  Ala.  205,  46  Am.  St. 
Rep.  119,  13  So.  277  a  case  of 
chattel  mortgage. 


§  441]  Teansfek  Inter  Vivos.  1645 

the  mortgage  depends  on  the  correctness  of  the  theory 
that  the  rights  of  one  who  has  a  mortgage  lien  are 
purely  executory,  and  this  is  perhaps  open  to  question. 
The  execution  of  the  mortgage,  even  in  states  where  it 
does  not  pass  the  legal  title  to  the  land,  vests  in  the 
mortgagee  a  lien,  involving  a  power  to  effect  the  sale 
of  the  land,  in  case  of  default  in  the  obligation  secured, 
and  such  lien  and  power  cannot,  it  would  seem,  be 
divested  by  a  subsequent  alteration  of  the  mortgage.^^ 
In  any  state,  however,  in  which  a  conveyance  is,  after 
alteration,  inadmissible  in  evidence,  the  mortgage  would 
be  subject  to  a  like  rule,  so  as  to  be  practically  nugatory 
as  a  result  of  the  alteration,  although  in  theory  the  lien 
still  exists. 

III.       DteSCEIPTION  OF  THE  LanD. 

§  441.  General  considerations.  In  order  to  make 
a  valid  conveyance  of  land,  it  is  essential  that  the  land 
itself,  the  subject  of  the  conveyance,  be  capable  of 
identification,  and,  if  the  conveyance  does  not  describe 
the  land  with  such  particularity  as  to  render  this  pos- 
sible, the  conveyance  is  absolutely  nugatory.**'  The 
lang-uage  of  the  conveyance  by  which  the  land  is  sought 
to  be  identified  is  usually  referred  to  as  the  "descrip- 
tion." 

39.  Such  a  view  is,  however,  43,  7  Pac.  33;  Huntress  v.  Port- 
contradicted  by  occasional  decis-  wood,  116  Ga.  351,  42  S.  E. 
ions  that  a  power  given  to  a  513;  Carter  v.  Barnes,  26  111. 
chattel  mortgagee  to  enter  and  455;  Wilson  v.  Johnson,  145  Ind. 
to  take  the  goods  on  the  mort-  40,  38  N.  E.  38,  43  N.  E.  930; 
gagor's  land  is  destroyed  hy  an  McBride  v.  Steinweden,  72  Kan. 
unauthorized  alteration  of  the  508,  83  Pac.  822;  Wilson  v.  In- 
instrument.  Hollingsworth  v.  loes,  6  Gill  (Md.)  121,  Holme 
Holbrook,  80  Iowa  151,  20  Am.  v.  Strautman.  35  Mo.  293;  Bailey 
St.  Rep.  411,  45  N.  W.  561;  v.  White,  41  N.  H.  :}37;  Jackson 
Bacon  v.  Hooker,  177  Mass.  335,  v.  Ransom,  18  Johns.  (N.  Y.) 
83  Am.  St.  Rep.  279,  58  N.  E.  107;  Kea  v.  Robeson,  40  N.  C. 
1078.  373;     Howard    v.    North,    5    Tex. 

40.  Brandon  v.  Leddy,   67  Cal.  290,    51    Am.    Dec.    769. 

R.  P.— 29 


1646 


Real.  Property. 


[§  441 


The  description  may  be  by  the  use  of  a  designa- 
tion for  the  land  which  has  a  recognized  application 
thereto,  as  when  one  conveys  the  **A"  estate  or  the 
"B"  farm.^^  The  grantor  may  also  describe  the  land 
as  his  land  in  a  certain  town,  or  in  a  certain  block,  or 
on  a  certain  street,  and  such  a  description  is  sufficient 
if  the  land  can  be  identified.^^  So,  a  conveyance  of 
''all  the  land"  or  "all  the  property"  owned  by  the 
grantor,  or  of  all  that  owned  by  him  in  a  particular 
district,  is  sufficient  to  convey  land  within  the  scope  of 
the  description,^''  as  is  a  conveyance  of  all  one's  interest 
in  the  estate  of  a  person  deceased,^^  or  of  such  land  as 
formerly  belonged  to  or  was  conveyed  to  a  particular 
person.^  ^ 

Whenever  land  is  occupied  and  improved  by  a  build- 
ing or  other  structure  designed  for  a  particular  purpose, 
which  comprehends  its  beneficial  use  and  enjoyment, 
it  may  be  conveyed  by  a  term  w^hich  describes  the  pur- 
pose to  which  it  is  thus  appropriated.*'^     For  instance. 


41.  See  Haley  v.  Amestoy,  44 
Cal.  132;  Trentman  v.  Neff,  124 
Ind.  503;  Vaughan  v.  Swayzie, 
56  Miss.  706;  Charles  v.  Patch, 
87  Mo.  450;  Barker  v.  Publishers 
Paper  Co.,— N.  H.,— 41  97  Atl. 
749;  Lennig's  Ex'rs  v.  White 
(Va.)    20   S.  E.  831. 

42.  Frey  v.  Clifford,  44  Cal. 
335;  Blair  v.  Bruns,  8  Colo. 
397;  Bird  v.  Bird,  40  Me.  398; 
Harmon  v.  James,  7  Smedes  & 
M.  (Miss.)  Ill,  45  Am.  Dec.  296; 
Doe  d.  Carson  v.  Ray,  52  N.  C. 
609,  78  Am.  Dec.  267. 

43.  Pettigrew  v.  Dobbelaar,  63 
Cal.  396;  Clifton  Heights  Land 
Co.  V.  Randall,  82  Iowa  89,  47 
N.  W.  905;  Marr  v.  Hobson,  22 
Me.  321;  First  Nat.  Bank  of 
Attleboro  v.  Hughes,  10  Mo.  App. 
7;  Brown  v.  Warren,  16  Nev. 
228;     Sally    v.    Gunter,    13    Rich. 


Law      (S.     C.)      72;      Harvey     v. 
Edens,  69  Tex.  420,   6   S.  W.  306. 

44.  Sheppard's  Touchstone, 
250;  Barnes  v.  Bartlett,  47  Ind. 
98;  Patterson  v.  Snell.  67  Me. 
559;  Butrick  v.  Tilton,  141  Mass. 
93,  6  N.  E.  563;  Austin  v.  Dolbee, 
101  Mich.  292,  59  N.  W.  608; 
Stewart  v.  Cage,  59  Miss.  558; 
Barton's  Lessee  v.  Morris'  Heirs, 
15  Ohio,  408;  McGavock  v.  Deery, 
1   Cold.    (Tenn.)    265. 

45.  Eufaula  Nat.  Bank  v. 
Pruett,  128  Ala.  470;  Choteau  v. 
Jones,  11  111.  300,  50  Am.  Dec. 
460;  Hogan  v.  Page,  22  Mo.  55; 
McChesney's  Lessee  v.  Wain- 
wright,  5  Ohio,  452;  Gresham  v. 
Chambers,  80  Tex.  544,  16  S. 
W.   326. 

46.  Johnson  v.  Rayner,  6  Gray 
(Mass.)  107;  Cunningham  v. 
Webb,   69   Me.  92. 


^  441] 


Transfer.  Inter  Vivos. 


1647 


under  the  designation  of  a  "house,"  a  "mill,"  a  "fac- 
tory," or  like  expressions,  not  only  the  land  beneath 
the  building,^'^  but  also  so  much  of  the  adjoining  land 
as  is  ordinarily  used  therewith  for  the  purpose  ex- 
pressed in  such  designation,'*^  will  pass,  provided,  of 
course,  a  contrary  intention  does  not  appear.  So,  by  a 
conveyance  of  a  "well,"  not  merely  the  right  to  take 
water  from  the  well,  but  the  land  itself  occupied  by  the 
well,  will  pass.^^ 

By  a  conveyance  of  "water,"  the  land  under  the 
water  does  not  usually  pass,  the  proper  description 
being  of  the  land  as  covered  by  water.^*^  A  conveyance 
of  "woods"  or  "forests"  is  sufficient  to  pass  the  land 
itself. ^^  A  conveyance  in  terms  of  the  "profits"  of 
land  will  pass  the  land  itself,  "for  what  is  the  land  but 


47.  Comyn's  Dig.  Grant,  E  11; 
Pottkamp  V.  Buss,  3  Cal.  Unrep. 
694,  31  Pac.  1121;  Dikeman  v. 
Taylor,  24  Conn.  219;  Hatch  v. 
Brier,  71  Me.  542;  Jamaica  Pond 
Aqueduct  Corp.  v.  Ciiandler,  9 
Allen  (Mass.)  159;  Webster  v. 
Potter.  105  Mass.  414;  Cravens 
V.  Pettit,  16  Mo.  210;  Lang- 
worthy  V.  Coleman,  18  Nev.  440; 
Doe  d.  Wise  v.  Wheeler  28  N. 
C.  196;  Wilson  v.  Hunter,  14  Wis. 
683,  80  Am.  Dec.  795. 

48.  Whitney  v.  Olney,  3  Mason 
280  Fed.  Cas.  No.  17,595  ;  Sparks 
V.  Hess,  15  Cal.  186;  Maddox 
V.  Goddard,  15  Me.  218,  .33  Am. 
Dec.  604;  Esty  v.  Baker,  48  Me. 
495;  Doane  v.  Broad  Street  Ass'n, 
6  Mass.  332;  Porbush  v.  Lom- 
bard, 13  Mete.  (Mass.)  109;  Am- 
midown  v.  Ball,  8  Allen  (Mass.) 
293;  Snow  v.  Inhabitants  of 
Orleans,  126  Mass.  453;  Gibson 
V.  Brockway,  8  N.  H.  465,  31 
Am.     Dec.     200;      Winchester     v. 


Hees,  35  N.  H.  43;  Marston  v. 
Stickney,  58  N.  H.  609;  Bogard 
V.  Barhan,  56  Ore.  269,  108  Pac. 
214;  Smith  v.  Martin,  2  Wms. 
Saund.  400,  note  2.  Compare 
Ogden  V.  Jennings,  62  N.  Y.  526 

So  a  conveyance  of  a  "pound" 
has  been  held  to  include  the 
land  under  the  pound  (Wooley  v. 
Inhabitants  of  Groton,  2  Cush. 
[Mass.]  305),  of  a  "rope  walk," 
land  actually  and  exclusively  de- 
voted to  the  use  of  the  rope 
walk  (Davis  v.  Handy,  37  N. 
H.  65),  and  of  a  "bridge,"  land 
on  which  the  bridge  is  erected 
(Sparks  v.  Hess,  15  Cal.  186). 
And  a  conveyance  of  a  "railroad" 
may  include  land  used  with  a 
railroad.  Missouri  Pac.  Ry.  Co. 
V.  Maffit,  94  Mo.  56,  6  S.  W.  600. 

49.  Johnson  v.  Rayner,  6  Gray 
(Mass.)  107;  Mixer  v.  Reed,  25 
Vt.   254.     See   Co.   Litt.   5. 

50.  Co.    Litt.    4b. 

51.  Co.   Litt.    4b. 


1G48  Real  Property.  [^  442 

(he  profits"  thereof, ^^  and  the  same  may  be  said  of  a 
conveyance  of  the  ''use"  of  the  land.^" 

§  442.    Description  by  government  survey.    One  of 

the  first  acts  passed  by  congress  looking  towards  the 
disposal  of  the  public  domain  provided  for  what  is 
known  as  the  "rectangular  system"  of  surveys,  which 
has  ever  since  been  in  force,  and  which  furnishes  the 
method  of  description  of  land  for  all  purposes  of  trans- 
fer in  those  parts  of  the  country  in  which  the  title  to 
land  is  derived  from  the  United  States. ^^  By  this  sys- 
tem, the  public  lands  are  divided  into  ' '  townships, ' '  each 
six  miles  square,  these  being  formed  by  lines  running 
east  and  west,  six  miles  apart,  which  are  crossed,  at 
intervals  of  six  miles,  by  lines  running  north  and  south. 
Each  township,  thus  including  approximately  thirty-six 
square  miles,  is  divided  into  thirty-six  rectangular  por- 
tions, each  one  mile  square,  called  a  "section."  A 
section  is  the  smallest  subdivision  of  which  the  lines  are 
actually  run  on  the  ground,  but  smaller  subdivisions  are 
recognized,  these  being  the  "quarter  section,"  contain- 
ing one  hundred  and  sixty  acres,  formed  by  running 
lines  at  right  angles'  from  points  on  the  section  bound- 
aries half  way  between  the  corners,  and  "quarter  quar- 
ter sections,"  of  forty  acres  each.  The  areas  of  the 
various  divisions  do  not,  however,  always  correspond 
exactly  to  the  figaires  above  given,  owing  to  irregulari- 
ties in  the  land,  and  the  convergence  of  the  meridians  as 
one  goes  further  north. 

52.  Co.  Litt.  4b;  Doe  d.  Goldiu  land  was  a  grant  of  the  minerals 
V.  Lakeman,  2  Barn.  &  Ad.  42;  in  place.  Weakland  v.  Cunning- 
Green  V.  Biddle,  8  Wheat.  (U.  S.)  ham,  (Pa.),  7  Atl.  148;  Paxton 
75,  76,  5  L.  Ed.  566;  McWilliams  v.  Benedum  Trees  Oil  Co.,— W. 
V.  McNamara,  81  Conn.  310,  70  Va.,— 94  S.  E.  472. 
Atl.  1043;  Caldwell  v.  Fulton,  53.  Fitzgerald  v.  Faunce,  46 
31  Pa.  484;  Drusadow  v.  Wilde,  N.  J.  L.  596:  Blauvelt  v.  Passaic 
63  Pa.  170.  Water   Co.,   75   N.    J.   Eq.   351,   72 

So    it    has    been    held    that    a  Atl.  1091. 

grant   of   the   profits   or   royalties  54.     See     Rev.     St.     U.     S.     §§ 

from     the     numerals     in     certain  2395-2397. 


^  442]  Transfer  Inter  Vivos.  1649 

"When  the  land  which  would  otherwise  be  comprised 
within  a  section  is  in  part  covered  by  navigable  waters, 
"meander"  lines  are  run  to  define  the  sinuosities  of 
the  bank  of  the  stream  or  lake,  and  as  a  means  of  ascer- 
taining the  quantity  of  land  in  the  "fractional"  section, 
as  it  is  called.  These  meander  lines  are  not,  however, 
in  the  ordinary  case,  boundaries  of  such  fractional 
section, ^^  these  being  the  banks  of  the  stream  or  lake,  or 
the  middle  line  thereof,  in  accordance  with  considera- 
tions previously  referred  to.^^ 

Each  tier  of  townships  running  north  and  south  is 
known  as  a  "range,"  and  the  range  is  described  with 
reference  to  a  line  known  as  the  "principal  meridian," 
while  each  tier  of  townships  running  east  and  west  is 
describ-ed  with  reference  to  some  parallel  of  latitude, 
taken  as  a  "principal  base  line."  Thus,  a  township  is 
referred  to  as  being  a  certain  number  north  or  south  of  a 
certain  base  line,  and  a  certain  number  east  or  west  of 
a  certain  meridian. 

The  thirty-six  sections  in  a  township  are  numbered 
consecutively,  beginning  at  the  northeast  corner,  and 
counting  west  therefrom,  and  then  proceeding  east  on 
the  tier  of  sections  next  below,  and  so  on  until  section 
thirty-six  is  reached  in  the  southeast  corner.  The  quar- 
ter section  or  quarter  quarter  section  is  defined  with 
reference  to  the  section  of  which  it  forms  a  part,  as 
when  one  conveys  the  southeast  quarter  of  the  north- 
west quarter  of  section  ten,  in  township  thirty-five 
north,  range  five  east.^'^ 

55.     St.    Paul    &    p.    R.    Co.    v.  140     N.     W.      610;      Sherwin     v. 

Schurmeir,    7   Wall'.    (U.    S.)    272,  Bitzer,   97   Minn.   252,   106   N.   W. 

19     L.     Ed.     74;      Hendricks     v.  1046;     Armstrong    v.    Pincus,    81 

Feather     River     Canal     Co.,     138  Ore.    156,    158    Pac.    662;     Brown 

Gal.    423,    71    Pac.    496;     Johnson  v.    Dunn,    135    Wis.    374,    115    N. 

V.  Johnson,  14  Idaho  561,  95  Pac.  W.    1097. 

499;    Tolleston  Club  v.  State.  141  56.     Ante,  §§  300-303. 

Ind.   197,   38   N.   E.   214,   40  N.   E.  57.     The  government  method  of 

690;    Berry    v.    IToogendoorn.    1.33  survey  is  briefly  and  clearly  des- 

lowa    437,    108    N.    W.    923;     Ar-  crlbed    in    Warvelle,   Abstracts   of 

nold    V.    Breohtel,    174    Mich.    147,  Title,   138   et   neq. 


1650  Real  Propeety.  [§§  443,  444 

§  443.  Reference  to  plat.  In  many  of  tlie  states 
there  are  statutory  provisions  authorizing  an  owner  of 
hind  to  have  it  surveyed  and  laid  off  in  lots  and  blocks, 
streets,  parks,  and  the  like,  and  to  file  in  the  public 
records  a  plate  or  map  of  the  land  as  thus  laid  off, 
authenticated  and  certified  as  may  be  required.  There- 
after any  one  of  these  lots  or  blocks  may  be  conveyed 
by  mere  reference  to  the  number  which  it  bears  upon 
the  recorded  plat,  thus  all  necessity  of  a  detailed  de- 
scription being  obviated.  The  statute  usually  contains 
provisions  to  the  effect  that  the  filing  of  the  plat  shall 
constitute  a  dedication  of  the  land  marked  thereon  as 
intended  for  streets  or  other  public  uses. 

Even  though  there  is  no  statutory  provision  on  the 
subject,  or  the  plat  is  not  authenticated  and  recorded 
as  required  by  the  statute,  a  reference  in  the  conveyance 
to  a  particular  plat  for  the  purposes  of  description 
makes  the  plat  in  effect  a  part  of  the  conveyance,  and 
it  may  accordingly  be  utilized  to  identify  the  land  con- 
veyed.^^  The  only  effect,  therefore,  of  the  statutes  pro- 
viding for  the  record  of  plats,  so  far  as  concerns  their 
use  for  purposes  of  description,  is  apparently  to  furnish 
a  means  for  their  preservation,  and  thus  to  avoid  any 
possible  loss  of  the  means  of  identifying  the  land. 

§  444.  Monuments,  courses,  and  distances.  Land 
is  frequently  described  in  a  conveyance,  or  attempted 
to  be  described,  by  naming  its  boundaries  in  detail. 
Such  a  description,  if  properly  made,  is  well  calculated 
to  identify  the  land,  but  frequently,  owing  to  carelessness 
in  making  the  survey  on  which  the  description  is  based, 
or  in   preparing   the   conveyance,   there  is   difficulty  in 

58.     Deery  v.  Gary,  10  WaU.  (U.  grove,    83    Iowa    682,    49    N.    W. 

S.)    263,   19    L.   Ed.   887;    Sanders  1040;    Erskine  v.  Moulton,  66  Me. 

V.    Ransom,    37    Fla.    457,    20    So.  276;      Sanborn     v.      MueUer,      38 

530;    Sears   v.    King,    91    Ga.    577,  Minn.   27,   35   N.  W.   666;    Corbett 

18     S.     E.     830;     Peoria    Gas.     &  v.    Norcross,    35    N.    H.    99;    Bor- 

Electric    Co.    v.    Dunbar,    234    lU.  ough  of  Birmingham  v.  Anderson, 

502,  85  N.  E.  229;   Young  V.  Cos-  48     Pa.     St.     253;      Scliwalin     v. 


§  444]  Transfer  Inter  Vivos.  1651 

locating  the  named  boundaries  on  the  ground.  In  the 
case  of  a  description  by  boundaries,  as  in  other  cases, 
the  intention  of  the  grantor,  as  inferred  from  the  terms 
of  the  description,  is  the  controlling  consideration,'^® 
and  any  rules  which  the  courts  may  have  formulated  as 
to  the  relative  importance  of  various  elements  of  the 
description  are  merely  intended  as  aids  in  arriving  at 
this  intention.  Boundaries  are  indicated  by  naming 
natural  or  artificial  monuments  to,  from,  or  along  which 
they  are  to  run,  or  with  reference  to  which  the  corner 
points  are  established,  or  by  stating  the  "courses  and 
distances"  of  the  boundary  lines,  and  frequently  by  all 
these  "elements"   of  description,   as  they  are  termed. 

A  monument,  for  the  purpose  of  description,  may 
consist  of  an  object  or  mark  on  the  land,  whether  nat- 
ural or  artificial,  which  serves  to  identify  the  location 
of  a  line  constituting  a  part  of  the  boundary,  and  it  may 
be  either  a  permanent  natural  object,  such  as  a  river, 
lake,  ledge  of  rocks,  or  tree,  or  it  may  be  an  artificial 
object,  such  as  a  highway,  wall,  ditch,  or  a  post. 

Frequently  the  boundary  lines  are  defined  as  ex- 
tending to  or  abutting  on  adjoining  land,  or  some  struc- 
ture which,  in  its  legal  signification,  includes  the  land 
under  it,  such  as  a  house  or  a  mill.  In  such  a  case,* the 
adjoining  land  or  structure  may  be  regarded  as  a  monu- 
ment,^°  but  the  land  conveyed  ordinarily  extends  merely 

Beardsley,   106   Va.   407,    56    S.   E.  167;     Browning's    Adm'x    v.     At- 

135;      Simmons     v.     Johnson,     14  kinson,    37    Tex.    633. 
Wis.    523.  60.     Where    the    description    of 

59.     Reed  v.  Proprietors  of  Locks  tract   A.   refers   to   another    tract, 

&     Canals     on     Merrimac     River,  B.,    for    the    purpose    of    locating 

8    How.    (U.    S.)    274,    12    L.    Ed.  the  boundary  of  A.,  the  boundary 

1077;      Serrano     v.     Rawson,     47  of  A.  is  to  be  adjusted  with  refer- 

Cal.     62;     Abbott    v.     Abbott,     51  ence  to   the  boundaries   of  B.,   as 

Me.    575;     Codman    v.     Evans,     1  the     parties     supposed     them     to 

Allen    (Mass.)    443;    Bruensmann  be    located,    rather   than    as   they 

V.  Carroll,   52  Mo.   313;    White  v.  are  actually  located.     Sullivan  v. 

Gay,    9    N.    H.    126,    31    Am.    Dec.  Hill,   33   Ky.   L.   Rep.   962,   112    S. 

224;     Peck     v.     Mallams,     10     N.  W.   564;    Whitwell   v.   Spiker,   238 

Y.  509;   Miller  v.  Bryan,  86  N.  C.  Mo.    629,    142    S.    W.    248;    Staub 


1652  Real  Peoperty.  [^  444 

to  the  side  of  the  land  or  structure  referred  to,''^  while 
in  the  ease  of  a  monument  the  name  of  which  does  not 
include  the  ownership  of  land,  such  as  a  highway,  wall, 
or  post,  the  land  conveyed  usually  extends  to  the  center 
thereof.®-  A  monument  may  even  consist  of  an  object 
not  existent  or  a  point  not  fixed  at  the  time  of  the  con- 
veyance, but  which  is  intended  to  be  thereafter  erected 
or  fixed,  and,  when  this  is  done,  the  call  therefor  will  be 
of  the  same  effect  as  if  the  monument  had  existed  at  the 
time  of  the  conveyance."^  And  so  the  boundary  of  the 
land  conveyed  may  be  fixed  by  reference  to  a  street 
not  yet  laid  out  or  opened,  but  intended  to  be  laid  out.®^ 
A  "course"  is  the  direction  in  which  a  line  runs, 
stated  with  reference,  not  to  its  terminus,  but  to  its 
correspondence  with  a  certain  point  of  the  compass, 
or  its  variation  from  the  magnetic  or  sidereal  meridan. 

Inconsistencies    and   (ambiguities.      Subject    to 


the   controlling   consideration   of   the   intention    of   the 

parties   as   to   the   meaning  of  the   language   used,   the 
primary  rule  in  applying  a  description  by  boundaries 

is  that,  in  ease  of  conflict,  calls  for  fixed  and  known 

V.  Hempton,  117  Tenn.  706,  101  S.  A    reference    to    a   house    as    a 

W.    776.  monument    has    sometimes    been 

61.  Ross  V.  Richardson,  173  regarded  as  referring  to  the  edge 
Ky.  255,  190  S  W.  1087;  City  of  of  the  eaves.  Millett  v.  Fowle, 
Boston  V.  Richardson,  13  Allen  8  Cush.  (Mass.)  150;  Sherman  v. 
(Mass.)  146,  154;  Schwalm  v.  Williams,  113  Mass.  481,  18  Am 
Beardsley,  106  Va.  407,  56  S.  E.  Rep.  522.  And  sometimes  to  the 
135;  Davis  Colliery  Co.  v.  West-  outer  surface  of  the  wall  or 
fall,  78  W.  Va.  735,  90  S.  E.  328.  foundation.      Centre    St.     Church 

62.  City  of  Boston,  v.  Richard-  v.  Machias  Hotel  Co.,  51  Me.  413; 
son,  13  Allen  (Mass.)  146,  154;  Kendall  v.  Green,  67  N.  H.  557, 
Freeman   v.    Bellegarde,    108    Cal.  42    Atl.    178. 

179,  49  Am.   St.  Rep.  76,   41  Pac.  63.     Makepeace  v.   Bancroft,   12 

289;     Sleeper    v.    Laconia,    60    N.  Mass.    469;    Lerned    v.    Morrill,    2 

H.  201;   Tagliaferri  v.  Grande,  16  N.   H.    197. 

N.  Mex.  486,  120  Pac.  730;  Warfel  64.     Manchester    v.    Hodge,    74 

V.  Knott,  128  Pa.  St.  528,  18  Atl.  N.   H.   468,    69   Atl.   527;    Felin   v. 

390;    Schwalm   v.    Beardsley,    106  Philadelphia,     241     Pa.     164,     88 

Va.  407,  56  S.  E.  135.  Atl.    421. 


§  444] 


Teansfer  Inter  Vrv'os. 


1653 


monuments  will  prevail  over  inconsistent  calls  for 
courses  and  distances,  monuments  being  from  their  very 
nature  more  likely  to  be  correct  than  mere  paper  state- 
ments as  to  the  character  of  an  imaginary  line.''^  This 
rule  is,  however,  not  absolute,  and  the  calls  for  monu- 


65.  Newson  v.  Pryor's  Lessee, 
7  Wheat.  (U.  S.)  10,  5  L.  Ed. 
382;  Watkins  v.  King,  118  Fed. 
524,  55  C.  C.  A.  290;  Taylor  v. 
Fomby,  116  Ala.  621,  67  Am.  St. 
Rep.  149,  22  So.  910;  Paschal  v. 
Swepston,  120  Ark.  230,  179  S. 
W.  339;  Kimball  v.  McKee,  149 
Cal.  435,  86  Pac.  1089;  Riley  v. 
Griffin,  16  Ga.  141,  60  Am.  Dec. 
726;  Read  v.  Bartlett,  255  111. 
76,  99  N.  E.  345;  Allen  v.  Kersey, 
104  Ind.  1,  3  N.  E.  557;  Helberg  v. 
Kepler,  178  Iowa  354,  159  N.  W. 
972;  Shanahan  v.  Mclntyre,  169 
Ky.  160,  183  S.  W.  529;  Pernam  v. 
Wead,  6  Mass.  131;  Stefanick  v. 
Fortuna,  222  Mass.  83,  109  N.  E. 
878;  Hoban  v.  Cable,  102  Mich. 
206,  60  N.  W.  466;  Burnham, 
Heirs  of  v.  Hitt,  143  Mo.  414, 
45  S.  W.  368;  Blackman  v. 
Doughty,  40  N.  J.  L.  319;  White 
V.  Williams,  48  N.  Y.  344;  Johns 
V.  City  of  Pendleton,  66  Ore. 
182,  46  L.  R.  A.  (N.  S.)  990, 
Ann  Cas.  1915B,  454,  133  Pac. 
817;  134  Pac.  312;  Cox  v.  Couch, 
8  Pa.  St.  147;  Johnson  v.  Archi- 
bald, 78  Tex.  96,  22  Am.  St.  Rep. 
27,  14  S.  W.  266;  Schwalm  v. 
Beardsley,  106  Va.  407,  56  S.  E. 
135. 

That  the  line  of  an  adjoining 
tract  given  as  a  means  of  locat- 
ing a  boundary,  whether  termed 
a  montiment  or  not,  ordinarily 
controls  courses  and  distances, 
see  Morrow  v.  Whitney,  95  U. 
S.  551,  24  L.  Ed.  456;  Rock  Creek 


Property  Co.  v.  Hill,  162  Ky.  324, 
172  S.  W.  671;  Chapman  v.  Ham- 
let, 100  Me.  454,  62  Atl.  215; 
Hill  V.  McConnell,  106  Md.  574 
68  Atl.  199;  Percival  v.  Chase, 
182  Mass.  371,  65  N.  E.  80;  Smith 
V.  Catlin  Land  &  Improvement 
Co.  117  Mo.  438,  22  S.  W.  1083; 
Whitaker  v.  Cover.  140  N.  C.  280, 
52  S.  E.  581;  Calhoun  v.  Price, 
17  Ohio  St.  96;  Airey  v.  Kunkle, 
190  Pa.  196,  42  Atl.  533;  Con- 
nor V.  Johnson,  59  S.  C.  115, 
37  S.  E.  240;  Pritchard  v.  Rebori, 
135  Tenn.  328,  186  S.  W.  121; 
Miller  v.  Holt,  47  W.  Va.  7,  34 
S.  E.  956.  But  see  Kock  v. 
Gordon,  231  Mo.  645,  apparently 
contra. 

In  some  cases  it  is  stated  that 
courses  and  distances  are  con- 
trolled by  natural  monuments, 
as  if  to  imply  that  they  are 
not  controlled  by  artificial  monu- 
ments. Brown  v.  Huger,  21 
How.  (U.  S.)  305,  16  L.  Ed.  125; 
Kimball  v.  McKee,  149  Cal.  435, 
86  Pac.  1089;  Thompson  v.  Hill, 
137  Ga.  308,  73  S.  E.  640;  Myers 
v.  St.  Louis,  82  Mo.  367;  Hen- 
nigan  v.  Matthews,  (Ore.)  155 
Pac.  169;  Maddox  v.  Fenner,  79 
Tex.    279,    15    S.    W.    237. 

In  North  Carolina,  only  natural 
monuments,  or  the  established 
line  of  another  tract,  will  con- 
trol courses  and  distances.  Tate 
V.  Johnson,  148  N.  C.  267,  61  S.  E. 
741;  Wilson  Lumber  Co.  v.  Hut- 
ton,  152  N.  C.  537,  68  S.   E.  2. 


1654 


KeaLi  Propeety. 


[§  444 


ments  must  yield  to  those  for  courses  and  distances 
if  it  in  any  way  appears  that  the  calls  for  courses  and 
distances  are  more  to  be  relied  on,^*^  and  the  courses 
and  distances  may  at  times  serve  to  aid  in  identifying 
the  monuments.'''^  When  the  courses  and  distances  con- 
flict, the  whole  description  is  to  be  considered  to  de- 
termine which  conforms  to  the  intention  of  the  parties, 
and  there  is  ordinarily  no  rule  by  w^hich  preference  is 
to  be  given  to  one  element  as  against  the  other.^^ 

Quite  frequently  the  quantity  or  estimated  quantity 
of  the  land  is  named  in  the  conveyance,  but  this  is 
considered  inferior  as  an  indication  of  the  location  of  the 
boundaries  to  the  elements  above  named,  and,  if  incon- 
sistent, must  vield  to  calls  for  courses  and  distances,"** 


66.  White  v.  Luning,  93  U.  S. 
514,  23  L.  Ed.  938;  Barker  v. 
Mobile  Electric  Co.,  173  Ala.  28, 
55  So.  364;  United  States  v.  Cam- 
eron,— Ariz., — 21  Pac.  177;  Mat- 
thews V.  Pursifull,  29  Ky.  L.  Rep. 
1001,  96  S.  W.  803;  Hamilton  v. 
Foster,  45  Me.  32;  Murdock  v. 
Chapman,  9  Gray  (Mass.)  156; 
Jamison  v.  Fopiano,  48  Mo.  194; 
Buffalo  N..  Y.  &  E.  R.  Co.  v. 
Stigeler,  61  N.  Y.  348;  Christen- 
son  V.  Simmons,  47  Ore.  184,  82 
Pac.  805;  Southern  Realty  Inv. 
Co.  V.  Keenan,  99  S.  C.  195,  83 
S.  E.  39;  Smith  v.  Hutchison, 
104  Tenn.  394,  58  S.  W.  226; 
Joggers  V.  Stringer,  47  Tex.  Civ. 
App.   571,  106   S.  W.  151. 

67.  Tyler  v.  Fickett,  73  Me. 
410;  Chisholm  v.  Thompson,  233 
Pa.  181,  82  Atl.  67. 

68.  Preston's  Heirs  v.  Bowmar, 
6  Wheat.  (U.  S.)  580,  5  L.  Ed. 
336;  McClintock  v.  Rogers,  11  111. 
279;  Blight  v.  Atwell,  4  J.  J. 
Marsh.  (Ky.)  278;  Loring  v. 
Norton,  8  Me.  61;  Hall  v.  Eaton, 
139    Mass.    217,    29    N.     E.     660; 


Curtis  V.  Aaronson,  49  N.  J.  L. 
68,  60  Am.  Rep.  584,  7  Atl.  886; 
Williams  v.  Mayfield,  57  Tex. 
364;  Green  v.  Pennington,  105  Va. 
801,  54  S.  E.  877;  Davies  v. 
Wickstrom,  56  Wash.  154,  105 
Pac.  454.  But  that  ordinarily 
distances  yield  to  courses,  see 
Paschal  v.  Swepston,  120  Ark. 
230,  179  S.  W.  339;  Ramsay  v. 
Morrow,  133  Ky.  486,  186  S.  W. 
296;  May  v.  Wolf  Valley  Coal  Co., 
167    Ky.    525.    180    S.    W.    781. 

69.  Doe  d.  Phillips'  Heirs  v. 
Porter,  3  Ark.  18,  36  Am.  Dec. 
448;  Ray  v.  Pease,  95  Ga.  153, 
22  S.  E.  190;  AUen  v.  Kersey, 
104  Ind.  1,  3  N.  E.  557;  Sanders 
V.  Godding,  45  Iowa,  463;  Rock 
Creek  Property  Co.  v.  Hill,  162 
Ky.  324,  172  S.  W.  671;  Sher- 
win  V.  Bitzer,  97  Minn.  252,  106 
N.  W.  1046;  Pohlman  v.  Evan- 
gelical Lutheran  Trinity  Church, 
60  Neb.  364,  83  N.  W.  201; 
Christian  v.  Bulbeck,  119  Va.  74, 
90  S.  E.  661;  Gilman  v.  Smith, 
12  Vt.  150;  Mclrwin  v.  Charle- 
bois,   38   Wash.   151,   80   Pac.   285. 


§  444] 


Transfer  Inter  Viv 


.'OS. 


1655 


as  well  as  to  calls  for  monuments/'^  In  par- 
ticular cases,  however,  when  the  other  calls  do  not 
clearly  show  the  intention  of  the  parties,  a  call  for 
quantity  may  have  a  controlling  effect."^ 

When  the  description  of  a  boundary  line  is  un- 
certain and  ambiguous,  if  the  parties  to  the  conveyance 
locate  on  the  ground  a  certain  line  as  being  that  de- 
scribed, and  the  grantee  holds  possession  accordingly, 
this  ''practical  location''  of  the  line  is  regarded  as 
showing  the  meaning  of  the  ambiguous  description, 
and,  as  such,  conclusive  on  each  of  them.'^^  Occasion- 
ally it  has  even  been  decided  that  a  line  thus  located  and 
acted  on  is  conclusive  upon  the  parties,  though  the 
course  as  given  in  the  conveyance  is  free  from  am- 
biguity, and  calls  for  a  different  line,'^ 


See   Cecil   v.    Gray,   170    Cal.    137, 
148   Pac.   935. 

70.  Thompson  v.  Sheppard,  85 
Ala.  611,  5  So.  334;  Dutra  v. 
Pereira,  135  Cal.  320,  67  Pac. 
281;  Cottingham  v.  Parr,  93  111. 
233;  Allen  v.  Kersey,  104  Ind. 
1,  3  N.  E.  557;  Martin  v.  Frazier, 
172  Iowa  63,  152  N.  W.  14;  Emery 
V.  Fowler,  38  Me.  99;  Sandrett  v. 
Whalston,  124  Minn.  331,  144  N. 
W.  1089;  Friesz  v.  Butcher, 
(Mo.),  191  S.  W.  66;  Doe  d. 
Arden  v.  Thompson,  5  Cow.  (N. 
Y.)  371;  Petts  v.  Shaw,  15  Pa. 
St.  218;  Ayers  v.  Harris,  64  Tex. 
393. 

71.  Montana  Mining  Co.  v. 
St.  Louis  Min.  &  Mill  Co.,  183 
Fed,  51,  105  C.  C.  A.  343;  Win- 
ans  V.  Cheney,  55  Cal.  567; 
Campbell  v.  Carruth,  32  Fla.  264, 
13  So.  432;  Sanders  v.  Godding, 
45  Iowa  463;  O'Brien  v.  Clark. 
104  Md.  30,  64  Atl.  53;  Hoff- 
man V.  City  of  Port  Huron,  102 
Mich.  417,  60  N.  W.  831;  Davis 
V.    Hess,    103    Mo.    31,    15    S.    W. 


324;  Wilson  Lumber  &  Milling 
Co.  V.  Hutton'  &  Bourbonnais, 
152  N.  C.  537,  68  S.  E.  2  Mc- 
Dowell V.  Carothers,  75  Ore.  126, 
146  Pac.  800;  Holden  v.  Cantrell, 
100  S.  C.  265,  84  S.  E.  826;  Vir- 
ginia Coal  &  Iron  Co.  v.  Ison, 
114  Va.  144,  75  S.  E.  782;  State 
V.  Herold,  76  W.  Va.  537,  85  S. 
E.    733. 

72.  Hastings  v.  Stark,  36  Cal. 
122;  Raymond  v.  Nash,  57  Conn. 
447;  Stone  v.  Clark,  1  Mete. 
(Mass.)  381;  Wells  v.  Jackson 
Iron  Mfg.  Co.,  47  N.  H.  235; 
Den  d.  Haring  v.  Van  Houten, 
22  N.  J.  L.  61;  Meeks  v.  Wil- 
lard,  57  N.  J.  L.  22,  29  Atl.  318; 
Linney  v.  Wood,  66  Tex.  22,  17 
S.  W.  244;  Messer  v.  Oestreich, 
52   Wis.   684,    18    N.   W.    6. 

73.  Knowles  v.  Toothaker,  58 
Me.  172;  Kellogg  v.  Smith,  7 
Cash.  (Mass.)  375.  This  seems 
to  be  an  approximation  to  the 
view  held  by  some  of  the  courts 
that  adjoining  owners  may  lo- 
cate    the     intervening     boundary 


1656  Real  Propehty.  [§  445 

§  445.  Boundaries  on  water.  The  question  whether 
land  under  water  belongs,  in  certain  cases,  to  the  state 
or  to  individuals,  has  been  before  discussed.'^  The 
question  now  arises  as  to  when,  in  case  of  land  under 
water  not  belonging  to  the  state,  a  conveyance  of  land 
as  abutting  on  the  water  will  be  construed  as  including 
such  land  under  the  water  as  belongs  to  the  grantor.  The 
general  rule  of  contruction  of  a  conveyance  of  land 
bounded  by  water  is  that,  unless  a  contrary  intention 
appears,  it  passes  the  soil  towards  the  center  of  the 
water  as  far  as  the  grantor  owns.'^  Accordingly,  if 
the  shore  of  the  sea  belongs  to  the  owner  of  the  upland, 
it  passes  by  a  conveyance  by  him  of  land  bounded 
"by  the  sea,"  or  "harbor,"  or  other  words  descriptive 
of  the  w^ater.'^^  And  a  grant  of  land  bounded  on  a 
navigable  nontidal  river,  in  those  states  in  which  the 
land  under  such  a  river  is  not  vested  in  the  state, 
prima  facie  conveys  the  whole  interest  of  the  grantor 
so  far  as  he  owns,  which  is  usually  to  the  center  of  the 
Btream.'^^  A  conveyance  of  land  bounded  on  a  nontidal, 
nonnavigable  river,  the  land  under  which  is  usually  in 
the    abutting   ow^ner    ad    filum    aquae,    that    is,  to    the 

line     by     mere     oral     agreement.  77.     Braxon  v.   Bressler,   64   111. 

See  ante,    §§   294     297.  492;    Williamsburg    Boom    Co.    v. 

74.  Ante,   §    300-303.  Smith,  84  Ky.   372,  1   S.  W.   765; 

75.  Cicero  v.  Chicago,  B.  &  Inhabitants  of  Warren  v.  Inhabit- 
Q.  R.  Co.  270  111.  606,  110  N.  E.  ants  of  Thomaston,  75  Me.  329, 
811;  Brophy  v.  Richeson,  137  46  Am.  Rep.  397;  City  of  Boston 
Ind.  114,  36  N.  E.  424;  Paine  v.  v.  Richardson,  105  Mass.  351; 
Woods,  108  Mass.  160.  See  note  Butler  v.  Grand  Rapids  &  I.  R. 
to  Allen  V.  Weber,  80  Wis.  531,  Co.,  85  Mich.  246,  24  Am.  St. 
14  L.  R.  A.  361,  27  Am.  St.  Rep.  Rep.  84,  48  N.  W.  569;  In  re 
51,   50   N.   W.   514..  West     Farms    Road,     212     N.     Y. 

76.  City  of  Boston  v.  Richard-  325,  106  N.  E.  102;  June  v.  Pur- 
son,  105  Mass.  351;  Winslow  v.  ceU,  36  Ohio  St.  396;  Jones  v. 
Patten,  34  Me.  25;  Partridge  v.  Janney,  8  Watts  &  S.  (Pa.)  436, 
Luce,  36  Me.  16;  Harlow  v.  42  Am.  Dec.  309;  Richmond  v. 
Fisk,  12  Cush.  (Mass.)  302;  Thompson's  Heirs,  116  Va.  178, 
Freeman  v.  Bellegarde,  108  Cal.  81  S.  E.  105;  Norcross  v.  Grif- 
179,  49  Am.  St.  Rep.  76,  41  Pac.  fiths,  65  Wis.  599,  66  Am.  Rep. 
289.  642,    27    N.    W.    606. 


§  445] 


Transfer  Inter  Vivos. 


1657 


middle  or  thread  of  the  stream,  prima  facie  passes  the 
soil  to  such  middle  line  J  ^  In  the  case  of  a  conveyance 
of  land  bounded  by  a  lake  or  pond,  the  same  general 
rule,  by  the  weight  of  authority,  applies,  and  the  con- 
veyance prima  facie  passes  the  soil  so  far  as  the 
the  grantor  owns,  whether  this  ownership  extends  to 
the  center  of  the  lake  or  pond,  to  the  high-water  mark, 
or  to  an  intermediate  point."^^  Occasional  decisions 
to  the  contrary,  that  a  conveyance  of  land  in  terms 
bounded  by  a  lake  or  pond  of  a  permanent  character 
does  not  prima  facie  pass  land  belonging  to  the  grantor 
under  the  water, ^"^  appear  to  be  based,  to  a  considerable 
extent  at  least,  upon  the  authority  of  decisions  that 
the  state,  and  not  the  individual,  had  title  to  such  land, 
a  very   different  matter. 

The   effect  thus   given  to  conveyances   as  passing, 
prima  facie,  the  soil  under  the  water,  is  based  not  only 


78.  Hanlon  v.  Hobson,  24  Colo. 
284,  42  L.  R.  A.  502,  51  Pac.  433; 
Stanford  v.  Mangin,  30  Ga.  355; 
Kinsella  v.  Stephenson,  265  lU. 
369,  106  N.  E.  50;  Foster  v. 
Bussey,  132  Iowa  640,  109  N.  W. 
1105;  State  v.  Gilmanton,  9  N. 
H.  461;  Canal  Fund  Com'rs  v. 
Kempshall,  26  Wend.  (N.  Y.) 
404;  Wall  v.  Wall,  142  N.  C. 
387,  55  S.  E.  283;  Fulmer  v.  Wil- 
liams, 122  Pa.  St.  191,  1  L.  R.  A. 
603,  9  Am.  St.  Rep.  88,  15  Atl. 
726;  Muller  v.  Landa,  31  Tex. 
265,  98  Am.  Dec.  529;  State  v. 
Superior  Court  for  Cowlitz 
County,  84  Wash.  252,  146  Pac. 
609. 

79.  Hardin  v.  Jordan,  140  U. 
S.  371,  35  L.  Ed.  428;  Johnson 
V.  Elder,  92  Ark.  30,  121  S.  W. 
1066;  Mill  River  Woolen  Mfg. 
Co.  V.  Smith,  34  Conn.  462; 
Brophy  v.  Richeson,  137  Ind. 
114,    36    N.    E.    424;     Stevens    v. 


King,  76  Me.  197,  49  Am.  Rep. 
609  isemble) ;  Paine  v.  Woods, 
108  Mass.  160;  Clute  v.  Fisher, 
65  Mich.  48,  31  N.  W.  614;  Castle 
V.  Elder,  57  Minn.  289,  59  N.  W. 
197;  Cobb  v.  Davenport,  32  N.  J. 
L.  360;  Gouverneur  v.  National 
Ice  Co.,  134  N.  Y.  855,  18  L.  R. 
A.  695,  30  Am.  St.  Rep.  669; 
31  N.  E.  865;  Lembeck  v.  Nye, 
47  Ohio  St.  336,  8  L.  R.  A.  578, 
21  Am.  St.  Rep.  828,  24  N.  E. 
686;  Conneaut  Lake  Ice  Co.  v. 
Quigley,  225  Pa.  605,  74  Atl.  648; 
Holden  v.  Chandler,  61  Vt.  291, 
18  Atl.  310;  Providence  Forge 
Fishing  &  Hunting  Club  v.  Mil- 
ler Mfg.  Co.,  117  Va.  129,  83 
S.  E.  1047. 

80.  Boardman  v.  Scott,  102  Ga. 
404,  51  L.  R.  A.  178,  30  S.  E. 
982;  Patapsco  Guano  Co.  v. 
Bowers  White  Lumber  Co.,  146 
N.  Car.  187,  125  Am.  St.  Rep. 
473,    13    L.    R.    A.    (N.    S.)    81,    59 


1658  Real  Property.  [§  445 

on  the  presumption  that  the  parties  intend  the  owner- 
ship thereof  to  be  vested  in  the  person  who  is  alone, 
usually,  in  a  position  to  make  use  of  it,  and  who  prob- 
ably will  need  to  do  so,  but  also,  in  some  decisions, 
upon  the  ground  of  public  policy,  w^hich  renders  it  de- 
sirable to  prevent  the  existence  of  small  strips  of  land 
along  the  margin  of  streams  or  other  bodies  of  water, 
the  title  to  w^iich  may  remain  in  abeyance  for  many 
years,  and  which  may  then  be  asserted  merely  in  order 
to  harass  the  owner  of  the  adjoining  land.^^  Sometimes, 
however,  in  the  case  of  a  stream,  the  rule  is  stated  as 
being  merely  an  application  of  the  principle  that,  when 
a  monument  is  referred  to,  the  land  conveyed  extends 
to  the  center  of  such  monument.^^ 

When  the  land  conveyed  is  described,  not  as  bounded 
by  a  stream,  but  by  or  on  the  "bank,"  "shore," 
"margin,"  or  "edge"  of  the  stream,  or  equivalent 
terms  are  used,  the  land  under  the  w-ater  has  usually 
been  regarded  as  intended  to  be  excluded.^^  The  same 
view  has  been  adopted  in  the  case  of  conveyances  of 
land  bounded  by  the  margin  or  shore  of  a  lake.^* 

S.  E.  538;  Kanouse  v.  Slockbower,  378;     Commissioners    Commercial 

48  N.  J.   Eq.  42.  Waterway     v.      Seattle     Factory 

81.  See  dissenting  opinion  by  Sites  Co.,  76  Wash.  181,  135  Pac. 
Redfield,  J,  in  Buck  v.  Squiers,  1042;  Allen  v.  Weber,  80  Wis. 
22  Vt.  484;  Luce  v.  Carley,  24  531,  27  Am.  St.  Rep.  51.  Contra, 
Wend.  (N.  Y.)  451,  35  Am.  Dec.  Sleeper  v.  Laconta,  60  N.  H. 
637.  201,  49  Am.  Rep.  311. 

82.  Sleeper  v.  Laconia,  60  N.  H.  But  that  the  land  is  described 
201;  Child  v.  Starr,  4  Hill  (N.  as  being  on  the  side  of  the 
Y.)   369.  stream  has  not  been  regarded  as 

83.  Rockwell  v.  Baldwin,  53  excluding  the  land  under  the 
111.  19;  Murphy  v.  Copeland,  51  water.  Harlow  v.  Fish,  12  Cush. 
Iowa  515,  43  Am.  Rep.  118;  (Mass.)  304;  Hanlon  v.  Hobson, 
Bradford  v.  Cressey,  45  Me.  9;  24  Colo.  284,  42  L.  R.  A.  502; 
Child  V,  Starr,  4  HiU  (N.  Y.)  Miller  v.  Mann,  55  Vt.  475;  Mor- 
369,  reversing  20  Wend.  (N.  Y.)  rison  v.  Keen,  3  Me.  474;  Carter 
149;  Halsey  v.  McCormick,  13  N.  v.  Chesapeake  &  Ohio  R.  Co.,  26 
Y.  296;  Lamb  v.  Ricketts,  11  Ohio,  W.  Va.  644,  53  Am.  Rep.  116. 
311;  Eddy  V.  St.  Mars,  53  Vt.  462,  38  84.  Axline  v.  Shaw,  35  Fla. 
Am.  Rep.  695;  Whittier  v.  Mont-  305,  28  L.  R.  A.  391,  17  So.  411; 
pelier   Ice  Co.,   90  Vt.   IG,   96  Atl.  Brophy     v.     Richeson,     137     Ind. 


^  445]  Teansfee  Intee  Vivos.  1659 

In  the  absence  of  anything  to  show  a  contrary  in- 
tention, a  call  for  the  bank  of  a  stream  as  the  boundary 
has  been  regarded  as  extending  the  description  as  far 
as  the  stream  itself  and  not  merely  to  the  top  of  the 
bank,^^  and  as  bounding  the  land  by  the  low-water  mark 
rather  than  by  the  high-water  mark.^*'' 

Whether  a  boundan^  on  or  by  'Hhe  shore"  ex- 
tends the  land  conveyed  to  high  or  to  low  water  mark, 
has  quite  frequently  been  the  subject  of  judicial  dis- 
cussion. Since  the  word  shore,  in  its  technical  sense, 
describes  the  land  between  high  and  low  water  mark,^" 
a  boundary  on  or  by  the  shore  w^ould  seem  properly 
to  carry  the  description  as  far  as  high  water  mark 
only,  and  such  is  the  effect  which  has  ordinarily  been 
given  thereto.^®  But  it  is  recognized  that  a  considera- 
tion of  the  whole  instrument,  and  of  the  monuments 
referred  to  therein,  or  of  the  point  of  beginning  of  the 
description,  may  serve  to  show  that  the  word  "shore" 
was  used,  in  an  untechnical  sense,  as  meaning  low  water 
mark.^*^     A  like  view  has  been  taken  in  the  case  of  a 

114,     36     N     .E.     424;     AUen     v.  46   Me.    127.     That  a  different  in- 

Weber,   80   Wis.   531,   14   L.   R.   A.  tention     may     be     inferred     from 

361,    27    Am.    St.    Rep.    51,    50    N.  the    language    used,    see    Dunlap 

W.  514.    But  see  Castle  v.  Elder,  v.     Stetson,     4     Mason      (U.     S.) 

57     Minn.     289,     59     N.     W.     197.  349;      Palmer      v.      Farrell.      129 

85.  Murphy     v.     Copeland,     58  Pa.    162,    15    Am.    St.    Rep.    708, 
Iowa,    409,    43    Am.    Rep.    118,    10  18  Atl.  761. 

N.    W.    786;     Stone    v.    AUgusta,  87.     Ante,    §    300. 

46   Me.   127;    Daniels  v.   Cheshire  88.     Storer  v.  Freeman,  6  Mass. 

R.  Co.,  20  N.   H.  85.  435,  4  Am.  Dec.  155;   Montgomery 

86.  Murphy  v.  Copeland,  58  y.  Reed,  69  Me.  510;  Brown  v. 
Iowa,  409,  43  Am.  Rep.  118,  10  Heard,  85  Me.  294,  27  Atl.  182; 
N.  W.  786;  Halsey  v.  McCormick,  Galveston  City  Surf  Bathing  Co. 
13  N-  Y.  296;  Yates  v.  Van  De  v.  Heidenheimer,  63  Tex.  559. 
Bogert,  56  N.  Y.  526;  Lamb  v.  gg.  whitmore  v.  Brown,  100 
Ricketts,  11  Ohio,  311;  Palmer  Me.  410,  61  Atl.  985;  Oakes  v. 
V.  Farrell,  129  Pa.  162,  15  Am.  De  Lancey,  133  N.  Y.  227,  28 
St.  Rep.  708,  18  Atl.  761.  Contra,  Am.  St.  Rep.  628,  30  N.  E.  974; 
People  ex  rel  Highway  Comm'rs  Haskell  v.  Friend,  196  Mass.  198. 
V.    Madison    County,    125    111.    9,  81    N.    E.    962. 

17   N.   E.   147;    Stone   v.   Augusta, 


1660  Eeal  Property.  [§  446 

boundary  on  a  *' beach  "^*^  or  on  "  flats.  "^^ 

The  fact  that  the  description,  while  stating  that 
the  land  is  bounded  "by"  a  stream,  or  that  it  extends 
''to"  a  stream,  or  that  a  boundary  runs  "along"  the 
stream,  names  an  object  on  the  shore  or  bank  as  a 
monument,  does  not  ordinarily  show  an  intention  to 
exclude  the  stream,  but  this  is  regarded  as  merely  a 
statement  of  the  point  at  which  the  boundary  strikes 
the  stream,  it  being  usually  impracticable  to  place  monu- 
ments actually  in  the  stream.^^ 

§  446.  Boundaries  on  ways.  As  before  stated,  the 
ownership  of  land  which  is  subject  to  use  as  a  highway 
is,  at  common  law,  in  individuals,  the  public  haAdng 
merely  the  use  thereof,  but  in  this  country,  the  owner- 
ship of  the  land,  the  "fee"  as  it  is  called,  is  quite  fre- 
quently in  the  state  or  municipality  in  trust  for  the 
public.  In  the  latter  case,  a  conveyance  of  land  as 
bounded  "by"  or  "along"  the  highway  can,  of  course, 
vest  in  the  grantee  no  part  of  the  land  occupied  by 
the  highway,  and  he  takes  merely  to  the  outer  edge 
thereof.  When,  however,  the  grantor  owns  part  or 
the  whole  of  the  land  subject  to  the  highway  use,  the 
question  frequently  arises  whether  his  conveyance 
passes  land  within  the  highway,  and,  in  deciding  this 
question,  the  same  considerations  apply  as  in  the 
analogous  case  of  a  conveyance  of  land  bounded  by 
water,  the  soil  under  which  belongs  to  the  grantor. 

A  conveyance  of  land  as  bounded  "on"  or  "by," 
or  as  running  "along"  a  highway,  will  convey  to  the 

90.  Litchfield  v.  Ferguson,  141  Livingston,  23  WaU.  (U.  S.)  46, 
Mass.  97,  6  N.  E.  721;  Hathaway  64;  Berry  v.  Snyder,  3  Bush 
V.  Wilson,  123  Mass.  359;  Nixon  (Ky.)  26,  96  Am.  Dec.  219;  Pike 
V.  Walter,  41  N.  J.  Eq.  103,  3  v.  Munroe,  36  Me.  309,  58  Am. 
Atl.  385;  Trustees  of  East  Hamp-  Dec.  751;  Cold  Spring  Iron 
ton  V.   Kirk,   68   N.   Y.   459.  Works     v.     Inhabitants     of     Tol- 

91.  Saltonstall  v.  Long  Wharf,  land,  9  Cush.  (Mass.)  492; 
7  Cush.    (Mass.)    195.  Rex    v.    Johnson,    5    N.    H.    520, 

92.  County     of     St.     Clair     v.  22  Am.  Dec.  472;   Kent  v.  Taylor, 


§  446] 


Transfer  Inter  Vivos. 


1661 


center  line  of  the  highway,  if  the  grantor  owns  thereto, 
unless  a  contrary  intention  appears  from  the  con- 
veyance,^^ and  this,  even  though  the  length  of  the 
side  boundary  lines,  as  given,  would  carry  them  only 
so  far  as  the  edge  of  the  highway.*^^  So,  when  land 
abutting  on  a  highway  is  conveyed  by  terms  of  descrip- 
tion which  make  no  mention  of  the  highway,  as  w^hen 
it  is  conveyed  by  a  number  on  a  plat,  the  grantor's  in- 
terest in  the  land  within  the  highway  limits,  it  has  been 
held,  presumably  passes.^^     But  if,  without  any  men- 


64  N.  H.  489,  13  Atl.  419;  Luce 
V.  Carley,  24  Wend.  (N.  Y.) 
451,  35  Am.  Dec.  637;  Grant  v. 
White,  63  Pa.  St.  271;  Noble  v. 
Cunningham    McMull    Eq.    289. 

93.  Columbus  &  W.  Ry.  Co.  v. 
Witherow,  82  Ala.  190,  3  So. 
23;  Kittle  v.  Pfeiffer,  22  Cal. 
484;  Smith  v.  Horn,  70  Fla.  484, 
70  So.  435;  Silvey  v.  McCooI,  86 
Ga.  1,  12  S.  E.  175;  La  Salle 
Varnish  Co.  v.  Glos,  254  111. 
326,  98  N.  E.  538;  City  of 
Dubuque  v.  Maloney,  9  Iowa, 
451,  74  Am.  Dec.  358;  Blalock  v. 
Atwood,  154  Ky.  394,  46  L. 
R.  A.  3,  157  S.  W.  694; 
White  V.  Godfrey,  97  Mass.  472; 
Hamlin  v.  Pairpont  Mfg.  Co., 
141  Mass.  51,  6  N.  E.  531; 
White  V.  Jefferson,  110  Minn.  276, 
32  L.  R.  A.  (N.  S.)  778,  784, 
124  N.  W.  373,  125  N.  W.  262; 
Thomas  v.  Hunt,  134  Mo.  392, 
32  L.  R.  A.  857,  35  S.  W.  581; 
In  re  Ladue,  118  N.  Y.  213,  23 
N.  E.  465;  Paul  v.  Carver.  26 
Pa.  223;  Cronin  v.  Janesville  Trac- 
tion Co.  163  Wis.  436,  158  N. 
W.  254. 

And   so   a   conveyance   of   land, 

"south    of    the    road"    has    been 

held    to    convey    a    part    of    the 

highway.     Helmer   v.   Castle,   109 

R.  P.— 30 


111.    664. 

94.  Moody  v.  Palmer,  50  Cal. 
31;  Oxton  v.  Groves,  68  Me. 
371,  28  Am.  Rep.  75;  Newhall  v. 
Ireson,  8  Cush.  (Mass.)  595, 
54  Am.  Dec.  790;  McKenzie  v. 
Gleason,  184  Mass.  452,  100  Am. 
St.  Rep.  566,  69  N.  E.  1076;  Paul 
v.  Carver,  26  Pa.  St.  223;  Wegge 
V.  Madler,  129  Wis.  412,  109  N. 
W.  223.  But  Chicago  v.  Rumsey, 
87   111.   348  appears  to  be   contra. ' 

95.  Berridge  v.  Ward,  10  C. 
B.  N.  S.  400;  Dickinson  v.  Ar- 
kansas City  Imp.  Co.,  77  Ark. 
570,  113  Am.  St.  Rep.  170,  92 
S.  W.  21;  Champlin  v.  Pendleton, 
13  Conn.  23;  Gear  v.  Barniim,  37 
Conn.  229;  Florida  Southern 
Railway  Co.  v.  Brown,  23  Fla. 
104,  1  So.  512;  Owen  v.  Brook- 
port,  208  111.  35,  69  N.  E.  952; 
Cox  V.  Louisville,  N.  A.  &  C.  R. 
Co.,  48  Ind.  178;  City  of  Dubuque 
V.  Maloney,  9  Iowa,  450,  74  Am. 
Dec.  358;  Grant  v.  Moon  128  Mo. 
43,  30  S.  W.  328;  White's  Bank 
of  Buffalo  V.  Nichols.  64  N.  Y. 
65,  Dobson  v.  Hohenadel,  148  Pa. 
367,  23  Atl.  1128;  Faulkner  v. 
Rocket,  33  R.  I.  152,  80  At.  380; 
Durbin  v.  Roanoke  Bldg.  Co.,  107 
Va.  753,  60  S.  E.  86;  Kneeland  v. 
Van    Valkenburgh,    46    Wis.    434, 


1662 


Keal  Property. 


[§  446 


tioii  of  the  hig'liway,  the  limits  as  given  clearly  ex- 
clude it,  as  when  they  bound  the  property  conveyed  by 
a  fence  or  wall  which,  as  a  matter  of  fact,  coincides 
with  the  marginal  line  of  the  highway,  no  land  within 
the  highway  will,  it  seems,  pass.^^ 

A  description  of  the  land  as  bounded  by  or  on 
the  ''side,"  "margin,"  or  "edge "of  the  highway  has 
more  usually  been  regarded  as  showing  an  intention  to 
exclude  the  land  mthin  the  highw^ay  limits  from  the 
operation  of  the  conveyance,^"  and  a  reference  to  the 
"line"  of  the  road,  either  without  any  prefix,^^  or 
with  a  prefix,  such  as  South  or  West,  showdng  that 
the  side  of  the  road  is  meant,^^  has  been  given  a  like 
effect.  In  some  states,  however,  a  dii¥erent  view,  that 
the  reference  to  the  side  or  margin  of  the  road  does 
not  exclude  the  highw^ay,  has  been  adopted.^ 


32  Am.  Rep.  719,  1  N.  W.  63; 
Contra,  Sutherland  v.  Jackson,  32 
Me.  80;  Hanson  v.  Campbell's 
Lessee,  20  Md.  223.  Compare  Ho- 
boken  Land  &  Improvement  Co, 
V.    Kerrigan.    31    N.    J.    Law    13. 

96.  Warren  v.  Blake,  54  Me. 
276,  89  Am.  Dec.  748;  Tyler  v. 
Hammond,   11   Pick.    (Mass.)    193. 

97.  Alameda  Macadamizing  Co. 
V.  Williams,  70  Cal.  534,  12  Pac. 
530;  Baltimore  &  O.  R.  Co.  v. 
Gould,  67  Md.  60,  8  Atl.  754; 
Tyler  v.  Hammond,  11  Pick. 
(Mass.)  193;  Holmes  v.  Turner's 
Falls  Co.,  142  Mass.  590,  8  N. 
B.  646;  Grand  Rapids  &  L  R. 
Co.  V.  Heisel,  38  Mich.  62; 
Betcher  v.  Chicago,  M.  &  St.  P. 
Ry.  Co.,  110  Minn.  228,  124  N. 
W.  1096;  Jackson  v.  Hathaway, 
15  Johns.  (N.  Y.)  447;  Blackman 
V.  Riley,  138  N.  Y.  318,  34  N.  E. 
214;  Trowbridge  v.  Ehrich,  191 
N.  Y.  361,  84  N.  E.  297;  Hughes 
V.  Providence  &  W.  R.  Co.,   2   R. 


I.  508;  Iron  Mountain  R.  Co.  v. 
Bingham,  87  Tenn.  522,  4  L.  R. 
A.  622,  11  S.  W.  705;  Buck  v. 
Squiers,    22    Vt.    484. 

98.  Hamlin  v.  Pairpont  Mfg. 
Co.  141  Mass.  51,  6  N.  E.  531; 
Harriman  v.  Whitney,  196  Mass. 
466,  82  N.  E.  671;  Lough  v. 
Machlin,  40  Ohio  St.  322;  Cole  v. 
Haynes.  22  Vt.  588;  Clayton  v. 
Gilmer  County  Court,  58  W.  Va. 
253,  2  L.  R.  A.  N.  S.  598,  52  S. 
E.  103;  Contra.  Helmer  v.  Castle, 
109  HI.  664;  Kneeland  v.  Van 
Valkenburgh,  46  Wis.  434,  32 
Am.   Rep.  719,  1   N.  W.   63. 

99.  Severy  v.  Cent.  Pac.  R.  Co., 
51  Cal.  594;  Warren  v.  Blake,  54 
Me.  276,  89  Am.  Dec.  748;  Grand 
Rapids  &  Ind.  R.  R.  Co.  v. 
Heisel,  38  Mich.  62;  Morrow  v. 
Willard,  30  Vt.  118. 

1.  Johnson  v.  Anderson,  18 
Me.  76  (sevible) ;  Woodman  v. 
Spencer,  54  N.  H.  507;  Salter  v. 
Jonas,  39  N.  J.  Law  469,  23  Am. 


§  446] 


Transpee  Inter  Vivos. 


1663 


By  analogy  to  the  rule  applied  in  the  case  of 
boundaries  on  streams,  it  would  seem  that  a  monument 
at  the  side  or  edge  of  the  highway,  when  referred  to  as 
a  starting  point  for  a  line  running  along  the  highway, 
should  not  ordinarily  exclude  the  soil  within  the  high- 
way limits,  but  that  it  might  well  be  regarded  as  merely 
showing  the  point  at  which  the  boundary  strikes  the 
highway,  since  it  is  not  usually  practicable  to  place  a 
monument  in  the  center  of  the  highway.  This  view 
has  occasionally  been  indicated,-  but  usually  the  nam- 
ing of  a  monument  at  the  side  or  edge  of  the  highway, 
from  which  the  line  is  to  run  along  the  highway,  has 
been  regarded  as  sufficient  to  exclude  the  land  within 
the  highway  limits,"  Where  the  latter  view  prevails, 
the  same  result  would  follow  when,  as  the  starting 
point  of  such  line,  there  is  named,  not  a  monument 
on  the  side  of  the  highway,  but  an  imaginary  point, 
such  as  the  intersection  of  the  side  line  with  another 
line.^ 


Rep.  229;  Humphreys  v.  East- 
lack,  63  N.  J.  Eq.  136,  51  Atl. 
775;  Paul  v.  Carver,  26  Pa.  223; 
Cox  V.  Freedley,  33  Pa.  St. 
124,  75  Am.  Dec.  584:  Anthony  v. 
City  of  Providence,  18  R  I.  699, 
28  Atl.  766.  Compare  Hobson  v. 
Philadelphia,  150  Pa.  St.  595,  24 
Atl.   1048. 

And  the  fact  that  the  length 
of  the  side  lines  of  the  property 
as  given  would  carry  them  to 
the  centre  of  the  highway  has 
been  regarded  as  immaterial. 
Baker  v.  Mobile  Electric  Co.,  173 
Ala.    28,   55    So.    304. 

2.  Moody  V.  Palmer,  50  Cal. 
31;  Cattle  v.  Young,  59  Me.  105; 
Low  V.   Tibbetts,   72   Me.   92. 

3.  Peabody  Heights  Co.  of  Balti- 
more V.  Sadtler,  63Md.  533;  Hunt 
V.  Brown,  75  Md.  481.  23  Atl.  1029; 
Sibley  v.  Holden,  10  Pick.  (Mass.) 


249;  Smith  v.  Slocomb,  9  Gray 
(Mass.)  36;  Kings  County  Fire 
Ins.  Co.  V.  Stevens,  87  N.  Y.  287. 
And  see  Peck  v.  Denniston,  121 
Mass.  17;  Chadwick  v.  Davis,  143 
Mass.  7,  8  N.  E.  601;  Hoboken 
Land  &  Improvement  Co.  v. 
Kerrigan,  31  N.  J.  Law  13;  Van 
Winkle  v.  Van  Winkle,  184  N. 
Y.  193,  77  N.  E.  33,  appears  to 
be    contra. 

4.  Smith  V.  Slocomb,  9  Gray 
(Mass.)  36;  Rieman  v.  Baltimore 
Belt  Ry.  Co.,  81  Md.  68,  31  At. 
444;  White's  Bank  of  Buffalo  v. 
Nichols,  64  N.  Y.  05;  Blackman 
v.  Riley,  138  N.  Y.  318.  34  N. 
E.  214.  See  Hoboken  Land  Co. 
V.    Kerrigan,   31    N.    .1.    L.    13. 

The  words  "beginning  on  the 
southerly  side  of"  the  road,  or  "at 
a  point"  on  such  side,  and  like 
expressions,     have     been,     In     at 


1664 


Real.  Pbopeety. 


[§  446 


In  applying  the  foregoing  rules,  the  highway  or 
street  referred  to  is  the  highway  as  opened  or  defined 
by  use,  rather  than  the  highway  as  platted  or  recorded.^ 
A  change  in  the  location  or  limits  of  the  highway  after 
the  making  of  the  conveyance  would  seem  not  to 
affect  the  boundaries  of  the  abutting  land/' 

In  some  jurisdictions  a  conveyance  is  not  regarded 
as  including  any  part  of  land  which  is  merely  intended  to 
be  dedicated  as  a  highway  in  the  future,  or  which  is 
merely  marked  on  a  plat  as  such,  although  the  land  con- 
veyed is  described  as  bounded  on  such  intended  highway 
as  if  it  actually  existed/  In  other  jurisdictions  it  is  con- 
sidered that  such  a  reference  to  land  as  a  highway 
raises  the  same  presumption  of  an  intention  to  convey 
the  land  to  the  center  of  the  proposed  highway  as  if 
the  highway  actually  existed.^ 


least  two  states,  construed  as 
merely  indicating  the  side  of  the 
road  on  which  the  land  lies  and 
not  as  locating  a  corner  of  the 
land  at  the  edge  of  the  road. 
O'Connell  v.  Bryant,  121  Mass. 
557;  Hamlin  v.  Attorney  General, 
195  Mass.  309,  81  N.  E'.  275; 
Salter  v.  Jonas,  39  N.  J.  L. 
469,  23  Am.  Rep.  229.  And  see 
Kneeland  v.  Van  Valkenburgh, 
46  Wis.  434,  32  Am.  Rep.  719, 
1  N.  W.  63.  But  a  contrary  view 
has  also  been  taken.  Walker  v. 
Pearson,  40  Me.  152;  In  re  Park- 
way 209  N.  Y.  344,  103  N.  E. 
508;  Kings  County  Fire  Ins.  Co. 
V.  Stevens,  87  N.  Y.  287;  Lankin 
V.  Terwilliger,  22  Ore.  97,  29 
Pac.  268.  And  see  Paul  v.  Car- 
ver, 26  Pa.  223. 

5.  Southern  Iron  Works  v. 
Central  of  Georgia  Rwy.  Co.,  131 
Ala.  649,  31  So.  723;  Orena  v. 
City  of  Santa  Barbara,  91  Cal. 
621,    28    Pac.    268,    Falls    Village 


Water  Power  Co.  v.  Tibbetts,  31 
Conn.  165;  Winter  v.  Payne,  33 
Fla.  470,  15  So.  211:  Cleveland  v. 
Obenchain,  107  Ind.  591,  8  N.  E. 
624;  Brown  v.  Heard,  85  Me.  294, 
27  Atl.  182;  Wilmarth  v.  Wood- 
cock, 66  Mich.  331,  33  N.  W.  400; 
O'Brien  v.  King,  49  N.  J.  Law  79, 
7  Atl.  34;  Blackman  v.  Riley, 
138  N.  Y.  318,  34  N.   E.  214. 

6.  Brantley  v.  Huff,  62  Ga. 
532;  White's  Bank  of  Buffalo  v. 
Nichols,  64  N.  Y.  65.  Contra, 
Williams  v.  Johnson,  149  Ky.  409, 
149    S.   W.    821. 

7.  Leigh  v.  Jack,  5  Exch.  Div. 
264;  Bangor  House  Proprietary 
v.  Brown,  33  Me.  309;  Palmer  v. 
Dougherty,  33  Me.  502,  54  Am. 
Dec.  636;  Robinson  v.  Myers,  67 
Pa.  St.  9;  Spackman  v.  Steidel, 
88  Pa.  St.  453;  Clymer  v.  Roberts, 
220  Pa.  162,  69  Atl.  548. 

8.  Bissell  V.  New  York  Cent. 
R.  Co..  23  N.  Y.  61;  In  re  Ladue, 
118    N.    Y.    213,    23    N.    E.    465; 


§  446] 


Transfer  Inter  Vivos. 


1665 


The  fact  that  the  land  as  described  borders  on  a 
strip  which  had  previously  been  a  highway,  but  which 
is  no  longer  such,  the  highway  having  been  vacated  be- 
fore the  delivery  of  the  conveyance,  has  been  held  not 
to  make  the  conveyance  effective  to  pass  any  part  of 
that  strip.'' 

If  the  owner  owns  the  w^hole  of  the  bed  of  the 
highway,  and  no  land  on  the  other  side  thereof,  his 
conveyance  of  land  on  the  highw^ay  wall,  it  has  been 
held,  prima  facie  pass  all  the  land  within  the  highway 
limits, ^°  and  this  has  occasionally  been  held  to  be  so 
although  the  ownership  of  the  further  half  of  the 
highway  involved  riparian  rights. ^^ 

When  the  land  conveyed  is  described  as  extending 
a  certain  distance  from  the  highway,  without  other 
means  of  determining  its  location,  the  line  is  ordinarily 
to  be  measured,  it  has  been  decided,  from  the  center 
line   of   the   highway.^^ 

Whether,  wiien  the  land  is  described  as  bounded  on 
a  private  way,  the  same  rule  applies  as  in  the  case  of  a 


Anthony  v.  City  of  Providence, 
18  R.  I.  699,  28  Atl.  766;  John- 
son V.  Arnold,  91  Ga.  659,  18 
S.  E.  370;  Thompson  v.  Maloney, 
199  111.  276,  93  Am.  St.  Rep.  133, 
65  N.  E.  236.  See  Peck  v. 
Denniston,    121    Mass.    17. 

9.  White  V.  Jefferson,  110 
Minn.  276,  32  L.  R.  A.  N.  S.  778, 
124  N.  W.  373,  125  N.  W.  262; 
In  re  Schmeidel's  Estate,  119 
Minn.  186,  137  N.  W.  1110; 
Brown  v.  Taber,  103  Iowa,  1,  72 
N.  W.  416.  Compare  Paine  v, 
(Consumers  F.  &  S.  Co.,  71  Fed. 
626.   19  C.   C.  A.   99. 

10.  Taylor  v.  Armstrong,  24 
Ark.  102;  Johnson  v.  Arnold,  91 
Ga.  659,  18  S.  E.  370;  In  re 
Robbins,  34  Minn.  99,  57  Am. 
Rep.  40,  24  N.  W.  356;  Thompson 
V.    Major,    58    N.    H.    242;    Haber- 


man  v.  Baker,  128  N.  Y.  253,  13 
L.  R.  A.  611,  28  N.  E.  370; 
Healey   v.    Babbitt,    14    R.    I.    533. 

11.  Wait  V.  May,  48  Minn. 
453,  51  N.  W.  471;  Johnson  v. 
Grenell,  188  N.  Y.  407,  81  N.  E. 
161;  Gifford  v.  Horton,  54  Wash. 
595,  103  Pac.  988.  And  see  Irvin 
V.  Crammond,  58  Ind.  App.  540, 
108  N.  E.  539.  But  Banks  v.  Og- 
den,  2  Wall.  (U.  S.)  57,  17  L. 
Ed.  818;  Demopolis  v.  Webb,  87 
Ala.  659,  6  So.  408;  Illinois  etc. 
Canal  v.  Haven,  11  111.  554; 
Brisbine  v.  Railway  Co.,  23  Minn. 
114;  Ocean  City  Hotel  Co.  v. 
Sory,  77  N.  J.  L.  527,  73  At. 
236,    are   apparently   contra. 

12.  Dodd  V.  Witt,  139  Mass. 
63,  52  Am.  Rep.  70U,  29  N.  E. 
475. 


1GG6  Real.  Property.  [§  447 

public  way,  so  as  to  give  to  the  grantee  the  land  to 
the  center  line  thereof,  in  the  absence  of  the  expression 
of  a  contrary  intention,  is  a  question  on  which  the  cases 
are  not  in  accord.  ^^  In  one  state  in  which  the  same 
rule  of  presumption  is  held  to  apply  in  the  case  of  a 
private  way,  it  has  been  said  that  an  intention  not  to 
grant  to  the  center  of  such  a  way  is  more  readily  in- 
dicated than  in  the  case  of  a  public  way.^^ 

§  447.  Sufficiency  of  description.  It  is  impossible 
to  give  any  general  rules  by  which  to  determine  wheth- 
er, in  the  case  of  any  particular  conveyance,  the  de- 
scription is  sufficiently  definite  to  render  the  instru- 
ment operative.  The  court  will,  if  possible,  with  the 
aid  of  evidence  introduced  for  the  purpose,  find  a 
particular  piece  of  land  which  the  description  serves 
to  differentiate  from  other  land.  A  case  of  insufficiency 
of  description  would  ordinarily  arise  whenever  the 
conveyance  is  in  terms  merely  of  a  tract,  or  of  a  tract 
of  a  certain  size  lying  in  a  certain  region  or  neighbor- 
hood, without  anything  to  indicate  its  exact  location.^^ 
And  a  case  of  insufficiency  of  description  quite  fre- 
quently arises  by  reason  of  a  conveyance  in  terms  of  a 

13.     In  Massachusetts  and  Penn-  In   Connecticut  and   Maine   the 

sylvania  the  same  rule  has  been  same     rule     does    not     apply    to 

held     to    apply    in    the    case    of  private  ways.  Seery  v.  Waterbury, 

a  private  way.     Fisher  v.  Smith,  82   Conn.   567,   74  At.   908;    House 

9    Gray     (Mass.)     441;     Gould    v.  Proprietary     v.     Brown,     33     Me. 

Eastern    R.    R.,    142    Mass.    85,    7  309;    Ames   v.   Hilton,   70   Me.   36. 

N.  E.  543;    Saccone  v.  West  End  As    to    the    rule    in    New    York, 

Trust    Co.,    224    Pa.    554,    73    At.  see  Mott  v.  Mott,  68  N.  Y.  246. 

971.      See  also  Witter  v.  Harvey,  14.     Gray   v.    Kelley,   194   Mass. 

1    McCord,     (S.    C.)     67,    10    Am.  533,    80    N.    E.    651. 

Dec.    650.     But  a  contrary   inten-  15.     Lewis    v.     Owen,     64     Ind. 

tion   may  of  course   appear    from  446;  Brock     v.     Mcllhenny's     Son, 

the     terms     of     the     conveyance.  136   La.   903,   67   So.   951;    Bell  v. 

Codman      v.      Evans,      1      Allen  Dawson,    32    Mo.    79;    Dickens    v. 

(Mass.)    443;    Crocker  v.  Getting,  Barnes,    79    N.    Car.    490;    George 

166    Mass.   183,    33    L.   R.   A.    245,  v.    Bates,    90    Va.    839,    20    S.    E. 

44   N.   E.   214.     And   see   Gushing  828;    Coker    v.    Roberts,    71    Tex. 

T.  Hathaway,  10  R.  I.  514.  597,    9    S.    W.    665. 


§  447]  Transfer  Inter  Vivos.  1667 

part  of  a  tract,  without  any  indication  of  its  position 
in  such  tract. ^'''  And  even  though  its  general  position 
in  the  larger  tract  may  be  indicated,  the  description 
my  be  insufficient  by  reason  of  a  failure  to  state  its 
extent. ^^  But  not  infrequently,  if  both  the  position  of 
the  smaller  tract  and  its  extent  is  stated,  the  descrip- 
tion may  be  regarded  as  intended  to  cover  a  rectangular 
piece  of  land  in  the  location  named,  as  for  instance 
upon  a  conveyance  of  the  South  ten  acres,  or  the 
Southwest  fifteen  acres  of  a  quarter  quarter  section. ^^ 
So  a  description  of  a  certain  number  of  acres  to  be 
taken  off  of  one  side  of  a  tract  of  a  triangular  shape 
has  been  regarded  as  sufficient. ^'^  Occasionally  a  con- 
veyance in  terms  of  a  certain  number  of  acres  out  of 
a  larger  tract,  without  any  indication  that  they  are  to 
be  laid  off  in  any  jDarticular  part  of  the  tract  has  been 
upheld  as  a  conveyance  of  an  undivided  interest  in 
the  whole  tract,  in  the  proportion  which  the  number  of 
acres  named  bears  to  the  number  comprised  in  the 
whole  tract.2^ 

16.  Graysonia  Nashville  Lum-  S.  E.  50;  Evans  v.  Gerry,  174  111. 
ber  Co.  v.  Wright,  117  Ark.  151,  595,  51  N.  E.  615;  Early  &  Co. 
175  S.  W.  405;  Cooper  v.  New-  v.  Long,  89  Miss.  285,  42  So. 
ton,  68  Ark.  150,  56  S.  W.  867;  348;  Smith  v.  Nelson,  110  Mo. 
James  v.  Hamil,  140  Ga.  168,  78  552,  19  S.  W.  734;  Walsh  v. 
S.  E.  721;  Hanna  v.  Palmer,  194  Ringer.  2  Ohio  327,  15  Am.  Dec. 
111.  41,  56  L.  R.  A.  93,  61  N.  E.  327;  Jackson  v.  Vickory,  1  Wend. 
1051;  Craven  v.  Butterfield,  80  (N.  Y.)  406,  19  Am.  Dec.  552; 
Ind.  503;  Brown  v.  Guice,  46  Lewellyn  v.  Gardner  13  Rich,  (S. 
Miss.  299;  Smith  v.  Proctor,  139  C.)  242;  Mendota  Club  v.  Ander- 
N.  Car.  314,  2  L.  R.  A.  N.  S.  son,  101  Wis.  479,  78  N.  W.  185. 
172,  51  S.  E.  889;  Herman  v.  So  in  the  case  of  an  exception 
Likens,  90  Tex.,  448,  39  S.  W.  of  a  named  quantity.  Watson  v. 
282.  Crutcher,    56    Ark.    44,    19    S.    W. 

17.  Carter  v.  Barnes,  26  111.  98;  Sweat  v.  Mnllis  145  Ga.  450, 
454;    Morse  v.  Stockman,  73  Wis.  89   S.   E.   422. 

89,  40  N.  W.  679.  19.     Ne-Ha-Sa-Ne  Park  Ass'n  v. 

18.  Carling  v.  Wilson,  177  Ala.  Lloyd  25  N.  Y.  Misc.  207,  55 
85,  58  So.  417;  Daniel  v.  Wil-  N.  Y.  Supp.  108;  Wells  v.  Hed- 
liams,  177  Ala.  140,  58  So.  419;  denberg,  11  Tex.  Civ.  App.  3. 
Payton   v.   McPhaul,   128   Ga.   510,  30    S.    W.    702. 

11    A.    &    E.    Ann.    Cas.    163,    58  20.     Cullen    v.    Sprlgg,    83    Cal. 


1668  Real  Property.  [§  447 

The  insufficiency  of  the  description  may  arise  from 
a  failure  to  name  any  point  with  reference  to  which 
the  courses  and  distances  of  the  boundaries  are  to  he 
referred  for  the  purpose  of  location  on  the  land.^^ 
And  an  attempted  description  by  reference  to  the 
government  survey  may  be  insufficient  by  reason  of  a 
failure  to  name  some  essential  element  such  as  ran^v. 
or   township.^ ^ 

It  has  been  decided  that  a  description  of  the 
property  as  a  house  and  lot  on  a  particular  street  is 
sufficient,  it  being  shown  that  the  grantor  o\vned  but 
one  house  and  lot  on  that  street.^^  And  the  same  view 
was  taken  in  the  case  of  the  conveyance  of  a  lot  of  a 
named  measurement  on  a  certain  street,  the  grantor 
owning  a  lot  of  that  measurement  on  the  street  and  no 
other.-*  And  in  a  number  of  other  cases  the  court  has 
referred  to  the  fact  of  ownership  by  the  grantor  of 
particular  land  as  tending  to  show  that  the  conveyance, 
otherwise  lacking  in  definiteness  of  description,  was 
intended  to  apply  to  that  land.^^  But  thus  to  con- 
sider the  question  of  the  grantor's  ownership  of  prop- 
erty in  order  to  identify  a  description  which  makes  no 

56,   23   Pac.    222;    Gibbs  v.    Swift,  of    sale);     Mead    v.    Parker,    115 

12   Cush.    (Mass.)    393;    Pipkin   v.  Mass.    413,   20   Am.    Rep.    110. 

Ullen,   29  Mo.   229;    Moorehead  v.  24.     Burton    v.    Mullenary,    147 

Hall,    126    N.    Car.    213,    35    S.    E.  Cal.    259,    81    Pac.    844.    .  And    see 

428;     Grlder    v.    Wood,    178    Fed.  Walker    v.    David,    68    Ark.    544, 

908,   102   C.   C.  A.   109.  60    S.    W.    418. 

21.  Le  France  v.  Richmond,  25.  Jenkins  v.  Woodward  Iron 
Fed.  Cas.  No.  8209,  5  Sawy.  Co.,  —(Ala.)—  69  So.  646;  Piper 
601;  Pry  v.  Pry,  109  111.  466;  v.  True,  36  Cal.  606;  Derham  v. 
Kennedy  v.  Maness,  138  N.  Car.  Hill,  57  Colo.  345,  142  Pac.  181; 
35,  50  S.  E.  450;  Barker  v.  Hornet  v.  Dumbeck,  39  Ind.  App. 
Southern  Rwy.  Co.,  125  N.  Car.  482,  78  N.  E.  691;  Harris  v. 
596,  74  Am.  St.  Rep.  658,  34  S.  Byers,  112  Miss.  651,  73  So.  614; 
E.    701.  Loomis  v.  Jackson,  19  Johns.   (N. 

22.  Puller  v.  Fellows,  30  Ark.  y.)  449;  Lush  v.  Druse,  4  Wend. 
657;  Hartigan  v.  Hoffman,  16  (N.  Y.)  313;  State  v.  Herold,  76 
Wash.  34,  47  Pac.  217.  W.   Va.   537,   85    S.   E.   733;    Davis 

23.  Hurley  v.  Brown,  98  Mass.  Colliery  Co.  v.  Westfall,  78  W. 
545,    96    Am.    Dec.    671    (contract  Va.  735,  90  S.  E.  328. 


§  447]  Transfee  Inter  Vivos.  1660 

reference  to  ownership  apparently  involves  the  inser- 
tion by  implication  in  the  conveyance  of  a  word  or 
words,  such  as  "my"  or  "belonging  to  me"  and  this 
would  seem  to  transcend  the  limits  of  construction.^^ 
A  conveyance  of  my  tract  of  land  in  X  county  would 
presumably  be  sufficiently  definite,  provided  the  grantor 
has  only  one  tract  in  that  county,  but  a  conveyance, 
under  the  same  circumstances,  of  a  tract  of  land  in  X 
county,  might  well  be  differently  regarded.  In  ac- 
cordance with  the  cases  previously  referred  to,  how- 
ever, are  a  number  of  decisions  that,  in  the  apparently 
analogous  case  of  a  will,  evidence  of  testator's  owner- 
ship of  particular  land  is  admissible  to  aid  the  de- 
cription.'^^ 

JTovided  the  property  is  otherwise  sufficiently  de- 
scribed, the  fact  that  there  is  an  incorrect  element  in  the 
description,  or  incorrect  addition  thereto,  will  not  invali- 
date the  description,  but  such  incorrect  element  will  be 
ignored.-^  This  rule  is  ordinarily  asserted  in  the  form 
of  the  maxim  falsa  demonstrato  non  nocet.  So  if  the 
land  is  otherwise  identified,  a  mistake  in  the  name  of 
the  town  or  county  in  which  it  lies  may  be  immaterial.-'' 

26.  See  4  Wigmore,  Evidence  164;  Winkley  v.  Kaime,  32  N.  H. 
§§     2476,     2477.  268;    Moreland    v    Brady,    8    Ore. 

27.  Patch  V.  White,  117  U.  S.  303,  34  Am.  Rep.  581;  In  re 
210,  29  L.  Ed.  860;  Higgin  v.  Gaston's  Estate,  188  Pa.  374,  68 
Tennessee  Coal,  Iron  &  R.  Co.,  Am.  St.  Rep.  874,  41  Atl.  526.  As 
183  Ala.  639,  62  So.  774;  Collins  to  the  Illinois  decisions  see  5 
V.    Capes,    235    111.    560,    85    N.    E.  Wigmore,  Evidence  §  2477. 

934;    Graves  v.   Rose,   246   111.   76,  28.     See    4    Wigmore,    Evidence 

92    N    E.    601;    Pate    v.    Bushong,  §    2476. 

161    Ind.    533,    63    L.    R.    A.    593,  29.     Perry   v.    Clark,    157   Mass. 

100   Am.    St.    Rep.    287,    69    N.    E.  330,    32    N.    E.    226;    Lambert    v. 

296;    Flynn  v.  Holman,  119  Iowa,  Murray,    52    Colo.    156,    120    Pac. 

731,     94     N.     W.     447;     Pring    v.  415;    Borchard    v.    Eastwood,    133 

Swann,  176  Iowa,  153,  157  N.  W.  Cal.  XIX,  65  Pac.  1047;    Black  v. 

734;     McMahan    v.    Hubbard,    217  Skinner    Mfg.    Co.,    53    Fla.    1088, 

Mo.    624,    118    S.    W.    481;     Pern-  1090,    43    So.    919,    922;    Rlsch    v. 

berton    v.    Perrin,    94    Neb.    718,  Jensen,   92    Minn.    107,    99    N.    W. 

Ann.    Cas.    1916B,    68,    144    N.    W.  628. 


1670 


Real  Property. 


H  ^7 


And  a  monument,^ *^  course,^^  distance,^^  or  statement 
of  quantity,^^  may,  in  particular  cases,  be  disregarded, 
as  may  a  statement  as  to  the  source  of  title  to  the 
property,^*  or  as  to  the  present  occupancy  thereof.^' 
It  has  been  quite  frequently  said  that  as  between 
a  general  description  and  a  particular  description  in 
the  same  conveyance,  the  latter  will  ordinarily  control.^^ 
It  would  seem  questionable,  however,  whether  this  state- 
ment properly  means  anything  more  than  that  a  descrip- 
tion which  does  not  undertake  to  give  the  exact  location 
of  the  land  conveyed  will  yield  to  a  descrijjtion  which 
does  give  its  exact  location,-^ ^  It  can  hardly  mean  that  a 
detailed  description  by  metes  and  bounds  or  courses 
and  distances,  or  by  naming  constituent  parts  of  the 
property,  will  take  priority  over  a  description  which 
does  not  enter  into  such  details.  A  description  of  the 
property  as  the  '*X"  place  or  the  "Y"  farm  is  not 
in  its  nature  any  more  general  than  a  description  by 


30.  Ayers  v.  Watson,  113  U. 
S.  594,  28  L.  Ed.  1093;  Sanborn 
V.  Rice,  129  Mass.  387;  Zeibold  v. 
Foster,  118  Mo.  349,  24  S.  W. 
155;  Upton  v.  Santa  Rita  Min. 
Co.  14  N.  Mex.  96,  89  Pac.  275; 
Stearns  v.  McHugh,  35  S.  Dak. 
185,    151   N.    W.    888. 

31.  Ante,   §   444,  note   66. 

32.  Ante,    §     444    notes    65,    68. 

33.  Ante,  §  444,  note  69. 

34.  Jay  v.  Michael,  82  Md. 
1,  33  Atl.  322;  Hastings  v. 
Hastings,  110  Mass.  280;  Drew  v. 
Drew,  28   N.   H.   489. 

35.  Stewart  v.  Davis.  63  Me. 
539;  Stone  v.  Stone,  116  Mass. 
279;  Hibbard  v.  Hurlburt,  10 
Vt.    173. 

36.  Guilmartin  v.  Wood.  76 
Ala.  204;  Gano  v.  Aldrldge,  27 
Ind.  489;  Kendrick  v.  Burchett, 
28  Ky.  L.  Rep.  342,  89  S.  W. 
239;    Pendergrass  v.  Butcher,   158 


Ky.  321,  164  S.  W.  949;  Perry  v. 
Buswell,  113  Me.  399,  99  Atl. 
483;  Savage  v.  Kendall,  10  Gush. 
(Mass.)  241;  McGowen  v.  Lewis, 
26  N.  J.  L.  451;  Peaslee  v.  Gee, 
19  N.  H.  273;  Boggess  v.  Allen,— 
(Tex.  Civ.  App.)— 56  S.  W.  195; 
Ridgell  V.  Atherton — (Tex.  Civ. 
App.)— 107  S.  W  129;  Spiller  t. 
Ccribner,  36  Vt.  245,  2  Devlin 
Deeds,   §   1039. 

37.  See  Barney  v.  Miller,  18 
Iowa,  460;  Black  v.  Skinner  Mfg. 
Co.,  53  Fla.  1090,  43  So.  919: 
Heman  v.  Gilliam,  171  Mo.  258, 
71  S.  W.  163;  Jones  v.  Smith,  73 
N.  Y.  205;  Cullers  v.  Piatt,  81 
Tex.  258,  16  S.  W.  1003;  Hunter 
V.  Hume,  88  Va.  24,  13  S.  E. 
305;  South  Penn  Oil  Co.  v.  Knox, 
68  W.  Va.  362,  69  S.  E.  1020; 
Pardee  v  .Johnston,  70  W.  Va. 
347,    74    S.    E.    721. 


§  447]  Transfer  Inter  Vivos.  1671 

metes  and  bounds,  and  there  does  not  seem  any  plau- 
sible reason  for  regarding  the  former  as  less  likely  than 
the  latter  to  represent  the  grantor's  intention.  Indeed 
it  appears  to  be  the  general  rule  that  if  the  conveyance 
describes  the  property  with  sufficient  definiteness  by 
language  which  does  not  enter  into  details,  this  de- 
scription will  not  be  cut  down  by  a  subsequent  clause 
which  does  attempt  to  give  in  detail  the  boundaries'^^ 
or  numbers  of  the  constituent  lots,^^  or  other  elements 
of  description.^^  So  it  has  been  decided  that  a  de- 
scription of  a  town  lot  by  its  number  and  the  number 
of  its  block,  includes  the  whole  lot,  though  it  is  fol- 
lowed by  a  description  by  metes  and  bounds  which 
covers  only  a  part  of  the  lot,*^  and  a  description  of  the 
land  as  the  grantor's  home  farm  was  regarded  as  un- 
affected by  an  attempt  to  give  the  constituent  parts  of 
the  farm,  which  omitted  several  acres.*^ 

As  a  description,  definite  in  itself,'*^  is  not  cut 
down  by  subsequent  words  attempting  to  •  give  a  more 
detailed  description,  so  it  is  not  cut  down  by  sub- 
sequent words  of  reference  or  explanation,  such  for 
instance,  as  indicate  the  source  of  title,**  or  previous 

38.  Haley  v.   Amestoy,   44  Cal.  40.     Stukeley     v.     Butler     Hob. 
132;   Rutherford  v.  Tracy,  48  Mo.      172. 

325,  8  Am.  Rep.  105;  Lodge  v.  41.  Rutherford  v.  Tracy,  48 
Lee,  6  Cranch  (U.  S.)  237,  3  L.  Mo.  325,  8  Am.  Rep.  104;  Master- 
Ed.  210;  Keith  v.  Reynolds,  3  son  v.  Munroe,  105  Cal.  431,  45 
Greenl.  (Me.)  393;  Jackson  v.  Am.  St.  Rep.  57,  38  Pac.  1106: 
Barrlnger,  15  Johns.  (N.  Y.)  Moore  v.  Minnesota  &  St.  R  S. 
471;  Quelch  v.  Futch,  172  N.  R.  Co.,  129  Minn.  237,  152  N. 
C.    316,    90    S.    E.    259;    Birch    v.  W.    405. 

Hutchings,    144    Mass.    561,    12    N.  42.     Andrews     v.     Pearson,     68 

E.     192;     Barney     v.     Miller,     18  Me.   19. 

Iowa,   460;    Gish   v.   Roanoke,   119  43.     See  Weller   v.   Barber,   110 

Va.    519,    89    S.    E.    970.  Mass    44;    Hathorn    v.    Hinds,    69 

39.  Sumner   v.    Hill,    157    Ala.  Me.    326. 

230,     47     So.    "565;      Andrews     v.  44.     Maker    v.     Lazell,    83    Me. 

Pearson,   68   Me.    19;    Marshall   v.  562,  23  Am.  St.  Rep.  795,  22  Atl. 

McLean,   3    G.    Greene — (Iowa),—  474;    Wilder  v.  Davenport,   58  Vt. 

363;    Whitaker    v.    Whitaker,    175  642.    See    Lovejoy    v.    Lovett,    124 

Mo.   1,   74   S.   W.   109.  Mas.s.    270. 


1672  Keal,  Propeety.  [^  447 

occupancy,*^  or  the  name  by  which  the  property  is 
ordinarily  knoAvn.**' 

A  description  of  the  property  conveyed  as  all 
that  part  of  a  particular  tract  which  the  grantor  has 
not  previously  sold  or  conveyed  is  sufficient,  it  being 
possible  to  apply  the  description  by  the  introduction 
of  evidence  of  what  had  been  previously  sold  or  con- 
veyed.*'^ 

Even  a  conveyance  of  a  certain  number  of  acres,  to 
be  selected  by  the  grantee,**  or  by  the  grantor,*^  out 
of  a  larger  tract  belonging  to  the  grantor,  would  seem 
to  be  sufficient,  in  case  the  selection  is  duly  made.  The 
only  possible  objection  to  such  a  conveyance  appears 
to  be  that  the  election  constitutes  a  condition  precedent 
to  the  vesting  of  an  estate,  and  that  this  would  in- 
volve a  violation  of  the  Rule  against  Perpetuities  un- 
less there  were  some  restriction  as  regards  the  time 
of  election.^'^  Such  a  restriction,  however,  might  be 
supplied  by  the  implication  of  a  requirement  that  the 
election  be  made  by  the  grantor  or  grantee  personally, 
in  which  case  it  must  be  made  within  a  life  in  being. 

It  is  said  that,  when  there  are  two  conflicting  de- 
scriptions in  the  conveyance,  the  grantee  maj^  elect  as 
between  them,^^  and  that  when  the  description  is  am- 

45.  Hobbs    V.    Payson,    85    Me.  602.  So    in    the    case    of    a    de- 
498,     27     Atl.     519,     Kimball     v.  vise,  1    Jarman,   Wills   331. 
Schoff,  40  N.  H.  190   (semile).  49.  See     Indianapolis     Natural 

46.  Barksdale  v.  Barksdale,  92  Gas.  Co.     v.     Spaugh,     17     Ind. 
Miss.   166,  45   So.   615.  App.  68.3,    46   N   .E.    691;    Indian- 

47     Maier    v.    Joslin,    46    Minn.  apolis  Natural  Gas  Co.  v.  Pierce, 

228,  48  N.  W.  909;   Baker  v.  Clay,  25   Ind.   App.   116,   56   N   E..   137; 

101  Mo.   553,  14  S.  W.  734;    Dun-  Hunt  v.  Campbell,  83  Ind.  48. 
can  V.   Madora,    106   Pa.   St.    562;  50.     See     Savill     Bros    Ltd.    v. 

Falls     Land     &     Cattle     Co.     v.  Bethell    [1902]    2   Ch.   523, 
Chisholm,    71    Tex.    523,    9    S.    W.  51.     Vance     v.     Fore,     24     Cal. 

479;    Frost    v.    Erath    Cattle    Co.,  435;    Merwin  v.  Backer,  80  Conn. 

81  Tex.  505,  26  Am.  St.  Rep.  831,  338,  68  Atl.  373;   Sharp  v.  Thomp- 

17   S.   E.   52.  son,  100  111.  447,  39  Am.  Rep.  61; 

48.     Hungerford's   Case  1   Leon  Hornet  v.  Dumbeck,  39  Ind.  App. 

30;    Marshall   v.   Marshall   Moore,  482,     78    N.     E.     691;     Melvin     v. 


§  448 J  Transfer  Inter  Vivos.  1673 

biguous,  it  will,  iu  the  absence  of  evidence  to  remove 
the  ambiguity,  be  construed  in  favor  of  the  grantee." 

§  448.  Appurtenances.  The  effect  of  a  conveyance 
of  land  in  certain  cases  as  creating  an  easement  cor- 
responding to  a  pre-existing  quasi  easement  has  been 
previously  considered.^^  As  to  the  effect  of  a  con- 
veyance of  land,  not  as  creating  an  easement,  but  as 
conveying  an  easement  already  existing,  it  is  well  set- 
tled that  such  an  easement  will  pass  on  a  conveyance 
of  the  land  to  which  it  appertains, — that  is,  the  domi- 
nant tenement, — even  though  there  is  no  reference  to  the 
specific  easement,  or  any  statement  that  all  the  "ap- 
purtenances" or  "privileges"  belonging  to  the  land 
shall  pass  therewith.^^ 

The  word  ''appurtenance"  is  properly  confined 
to  things  of  an  incorporeal  character,  such  as  ease- 
ments or  profits  a  prendre,  and  a  conveyance  of  land 
"with  the  appurtenances"  will  not  pass  land  other  than 
that  described,  on  the  theory  that  it  is  appurtenant 
thereto,  or,  as  the-  rule  is  usually  expressed,  "land 
cannot    be    appurtenant   to    land."^'^      The   word    "ap- 

Merrimack   River   Locks,    5   Mete.  36    Ala.    627,    76    Am.    Dec.    338; 

(Mass.)     27;     Esty    v.    Baker,    50  Jackson  v.  TruUinger,  9  Or.  393; 

Me.  325,  79  Am.  Dec.  616.  National  Exchange  Bank  v.  Cun- 

52.  Black  v.  Skinner  Mfg.  Co.,  nlngham,  46  Ohio  St.  575;  Win- 
53  Fla.  1090,  43  So.  919;  Quade  slow  v.  King,  14  Gray  (Mass.) 
V.  Pillard,  135  Iowa,  359,  112  N.  323;  Bowling  v.  Burton,  101  N. 
W.  646;  Pike  v.  Munroe,  36  Me.  C.  176,  2  L.  R.  A.  285,  7  S.  E. 
309,  58  Am.  Dec.  751;  Hastings  v.  701;  Cope  v.  Grant,  7  Pa.  St.  488. 
Hastings,  110  Mass.  280;  Cole  v.  Occasionally,  however,  the 
Mueller,  187  Mo.  638,  86  S.  W.  courts  speak  as  if  it  were  by 
193;  Sanborn  v.  Clough,  40  N.  reason  of  the  use  of  the  word 
H.  316;  Waterman  v.  Andrews,  "appurtenances"  that  an  appur- 
14  R.  I.  589;  Green  Bay  &  M.  tenant  easement  passes.  Whittle- 
Canal  Co.  v.  Hewitt,  55  Wis.  96,  sey  v.  Porter,  82  Conn.  95,  72 
42  Am.  Rep.  701,  12  N.  W.  382.  Atl.  593;   Swartz  v.  Swartz,  4  Pa. 

53.  Ante,   §    363(b).  353. 

54.  Sheppard's  Touchstone,  89;  55.  Co.  Litt.  121b;  Harris  v. 
Co.  Litt.  121b;  Crosby  v.  Brad-  Elliott.  10  Pet.  (U.  S.)  25,  9  D. 
bury,  20  Me.  61;  Shelby  v.  Ed.  333;  Humphreys  v.  Mc- 
Chicago  &  E.  I.  R.  Co.,  143  HI.  Kissock,  140  U.  S.  304,  35  L.  Ed. 
385,  32  N.  E.  438;  Llde  v.  Hadley,  473;     Evans    v.    Welch,    29    Colo., 


1674 


Real  Property. 


[§  448 


purtenances"  may,  however,  it  appears,  be  shown  not 
to  have,  in  the  particular  case,  its  legal  meaning,  but 
to  be  used  in  a  different  sense,  such  as  "usually  en- 
joyed with,"  and  so  to  pass  land  other  than  that 
specifically  described.^^  And  so,  while  the  word  "ap- 
purtenances" will  not  usually  extend  the  scope  of 
the  conveyance  so  as  to  include  things  of  a  chattel 
character,  which  are  not  legally  part  of  the  land  con- 
veyed," but  they  may,  it  has  been  held,  be  shown  to 
have  been  intended  to  be  covered  by  the  term.^^  Oc- 
casionally materials  placed  on  land  for  the  purpose  of 
subsequent  incorporation  in  a  structure  thereon,  a 
building  or  fence,  for  instance,  have  been  regarded  as 
passing  on  a  conveyance  in  terms  of  the  land,  on  the 


355,  68  Pac.  776;  St.  Louis  Bridge 
Co.  V.  Curtis,  103  111.  410; 
Warren  v.  Blake,  54  Me.  276,  89 
Am.  Dec.  748;  Whitmore  v. 
Brown,  100  Me.  410,  61  Atl.  985; 
Leonard  v.  White,  7  Mass.  8,  5 
Am.  Dec.  19;  Oliver  v.  Dickin- 
son, 100  Mass.  114;  Wilson  v. 
Beckwith,  117  Mo.  61,  22  S.  W. 
639;  WoodhuU  v.  Rosenthal,  61 
N.  Y.  382;  Geneva  v.  Henson,  195 
N.  Y.  447,  88  N.  E.  1104;  Latta 
V.  Catawba  Electric  Co.,  146  N. 
C.  285,  59  S.  E.  1028;  Cole  v. 
Haynes,   22   Vt.   588. 

56.  Hill  V.  Grange,  1  Plowd. 
164;  Whitney  v.  Olney,  3  Mason, 
280,  Fed.  Cas.  No.  17,595;  Hearn 
V.  Allen,  Cro.  Car.  57;  Thomas  v. 
Owen,  20  Q.  B.  Div.  225;  Crozer 
V.  White,  9  Cal.  App.  612,  100 
Pac.  130;  Hill's  Lessee  v.  West. 
4  Yeates  (Pa.)  142;  Ammidown 
V.  Granite  Bank,  8  Allen  (Mass.) 
285.  See  Missouri  Pac.  R.  Co. 
V.  Maffitt,  94  Mo.  56,  6  S.  W.  600. 

In  some  cases  the  use  of  the 
word  "appurtenances"  in  connec- 
tion   with    the    conveyance    of    a 


building  has  been  referred  to  as 
extending  the  Import  of  the 
conveyance,  as  where  there  was 
a  conveyance  of  a  house  or  mill 
"with  appurtenances,"  In  which 
cases  the  inclosure  and  small 
outbuildings  were  held  to  pass. 
Ammidown  v.  Ball,  8  Allen 
(Mass.)  293;  State  v.  Burke,  66 
Me.  127;  Cunningham  v.  Webb. 
69  Me.  92.  Compare  Frey  v. 
Drahos,  6  Neb.,  39  Am.  Rep. 
353.  But  in  these  cases  the  effect 
would,  it  seems,  under  the  rule 
previously  stated  (see  §  441,  note 
48),  have  been  the  same  if  the 
conveyance  had  contained  no  ref- 
erence to  the  "appurtenances." 
Likewise  a  water  pipe  leading  to 
the  property  conveyed  has  been 
held  to  pass  under  that  de- 
scription. Mulrooney  v.  Obear, 
171  Mo.  613,  71  S.  W.  1019. 

57.  Ottumwa  Woolen  Mill  Co. 
V.  Hawley,  44  Iowa,  57,  24  Am. 
Rep.  719;  Frey  v.  Drahos,  6 
Neb.  1;  Scheldt  v.  Belz,  4  111. 
App.   431. 

58.  Redlon    v.    Barker,    4    Kan. 


"§1  449]  Transfer  Inter  Vivos.  1675 

theory  that  they  had,  by  reason  of  their  destination, 
become  legally  a  part  of  the  land  or  as  being  intended 
to  be  included  in  the  description  of  the  land.^^ 

IV.    Covenants  for  Title. 

§  449.  General  considerations.  In  most  convey- 
ances of  land  there  are  one  or  more  covenants  by  the 
grantor  as  to  the  title  to  the  premises,  under  which  the 
grantee  may,  in  case  of  failure  of  title,  obtain  in- 
demnity in  damages.  These  covenants  are  of  certain 
recognized  classes,  having,  as  a  rule,  fixed  legal  effects, 
though  these  may  be  varied  by  the  construction  placed 
upon  the  covenant  in  the  particular  case.*^'^ 

In  the  earlier  stages  of  the  common  law  no  such 
personal  covenants  were  recognized,  but  the  feoffment 
was  usually  attended  with  a  "warranty."  This  com- 
mon-law warranty,  which,  taking  its  origin  in  the 
obligation  of  the  feudal  lord  to  protect  the  holding  of 
his  tenant,  continued,  even  after  the  statute  of  Quia 
Emptores,  to  be  a  usual  incident  of  a  feoffment,  was 
in  its  nature  a  "covenant  real,"  that  is,  compensation 
for  its   breach   was   awarded,   not  in   damages,   but   in 

445;  Badger  Lumber  Co.  v.  bes,  23  111.  301,  and  as  to  build- 
Marion  Water  Supply,  Electric  ing  materials.  Byrne  v.  Werner, 
Light  &  Power  Co.,  48  Kan.  182,  138  Mich.  328,  69  L.  R.  A.  900, 
15  L.  R.  A.  652,  30  Am.  St.  Rep.  110  Am.  St.  Rep.  315,  101  N.  W. 
301,  29  Pac.  476;  Gorham  v.  555;  Contra,  Hinkle  v.  Hinkle, 
Eastchester  Electric  Co.,  31  Abb.  69  Ind.  134;  Woodman  v.  Pease, 
N.  C.  198,  29  N.  Y.  Supp.  1094.  17  N.  H.  282;  Peck  v.  Batchelder, 
59.  It  was  so  held  as  to  40  Vt.  233,  94  Am.  Dec.  392; 
fencing  materials.  McLaughlin  Blue  v.  Gunn,  114  Tenn.  414,  69 
V.  John,  46  111.  163;  Ripley  v.  L.  R.  A.  892,  108  Am.  St.  Rep. 
Paige,  12  Vt.  533;  Hackett  v.  912,  4  Ann.  Cas.  1157,  108  S.  W. 
Amsden,    57    Vt.    432;    Conklin   v.  408. 

Parsons,    2    Pinney     (Wis.)     264;  60.     See    Rawle,    Covenants    for 

Contra,   Cook  v.   Whiting,   16   111;  Title,    §    57.      The    following    out- 

Hinkle    v.    Hinkle,    69    Ind.    134;  line     of    the     law     of     covenants 

Longino    v.    Webster — (Tex.    Civ.  for  title  is  based  almost  entirely 

App.) — 88  S.  W.  445.     As  to  rail-  upon  this  most  admirable  work, 
road    materials.     Palmer   v.    For- 


1676  Real  Property.  [§  449 

kind,  by  a  judgment  in  favor  of  the  warrantee  or  his 
heirs,  against  the  original  warrantor  or  his  heirs,  for 
the  recovery  of  other  lands  equal  in  value  to  those 
of  which  the  warrantee  had  been  deprived.  A  war- 
ranty, operating,  as  it  did,  against  the  heir  of  the 
warrantor,  was,  after  the  statute  De  Donis  and  before 
the  decision  in  Taltarum's  Case,  utilized  for  the  pur- 
pose, in  particular  cases,  of  barring  estates  tail,  and 
in  the  efforts  to  extend  its  effectiveness  in  this  direction 
the  law  of  the  subject  was  immensely  extended  and 
complicated.*^^  The  remedy  on  a  warranty  was  avail- 
able only  in  connection  with  freehold  estates,  and  con- 
sequently, if  the  warranty  was  attached  to  a  term  of 
years,  or  if  the  grantee  of  a  freehold  estate  was 
evicted  for  a  term,  the  warrantee  could  not  recover.^- 
In  the  later  history  of  the  subject,  however,  there  was 
a  relaxation  of  this  rule  to  the  extent  that  when,  in 
such  a  case,  the  warranty  failed  as  a  covenant  real,  it 
might  be  construed  as  a  personal  covenant  on  which  an 
action  for  damages  might  be  brought.^^ 

After  the  introduction  of  conveyances  under  the 
Statute  of  Uses,  warranty,  which  was  in  its  origin  as- 
sociated with  the  transfer  by  feoffment,  was  gradually 
supplanted  by  personal  covenants,  the  purpose  of 
which  was  to  give  a  remedy  in  damages  against  the 
covenantor  in  case  of  failure  of  title,  and  which  were 
available  in  connection  with  leasehold,  as  well  as  free- 
hold, estates,  and  warranty  was  finally  abolished  by 
statute  in  England  in  the  nineteenth  centur3\^^ 

In  this  country,  settled  after  the  common-law  war- 
ranty had  lost,  to  a  considerable  extent,  its  importance 
in  England,  that  method  of  securing  the  grantee  against 

61.  See    Rawle,    Covenants,    c.      113;    1  Smith,  Lead.  Cas.  214. 

1,  where  the  nature  of  warranty  63.     Pincombe    v.    Rudge,    Hob. 

at  common  law  is  clearly  stated.  3g;    Williams  v.  Burrell,  1  C.  B. 

See,    also,    1    Smith,    Lead.    Cas.  402. 

Eq.      (8th     Ed.)      213,     American  64.     See    Rawle,    Covenants,    §§ 

notes  to   Sipencer's  Case.  9-14;    8   Am  &   Eng.   Encyc.   Law 

62.  Rawle,    Covenants,    §§    12,  (2nd  Ed.)    58,  78. 


§  449]  Transfer  Inter  Vivos.  1677 

loss  from  failure  of  title  was  never,  to  any  extent, 
utilized,  but  the  law  of  personal  covenants  for  title 
lias  been  developed  and  extended  to  a  greater  extent 
even  than  in  England,  where  the  particularity  with 
which  intending  purchasers  examine  the  title  has  ren- 
dered them  comparatively  superfluous. 

By  statute  in  some  states,  certain  covenants  for 
title  are  implied  from  the  use  of  particular  operative 
words  in  a  conveyance,  usually  ''grant,  bargain,  and 
sell,"*'^  and  occasionally  a  covenant  in  form  one  of 
warranty  merely  is  by  statute  declared  to  imply  cer- 
tain other  covenants  for  title.*^^  In  some  states,  on 
the  other  hand,  it  is  enacted  that  no  covenants  shall 
be  implied  in  ^  conveyance  of  real  estate.^'^ 

The  covenants  of  title  considered  in  the  following 
sections  are  ''general"  covenants,  that  is,  they  are 
in  terms  sufficient  to  protect  the  covenantee  against  the 
claims  of  all  persons  whomsoever.  Covenants  may  be, 
however,  and  frequently  are,  "special"  in  character, 
that  is,  they  are  so  expressed  as  to  atford  protection 
against  the  acts  of  the  covenantor  only,  or  of  persons 
claiming  under  him.*^^ 

A  covenant  for  title,  in  tlie  case  of  land  conveyed 
by  metes  and  bounds,  is  not  broken  by  reason  of  a 
deficiency  in  the  quantity  stated  to  be  conveyed  thereby. 
The  statement  of  the  quantity  is  controlled  by  the 
description   by   metes   and   bounds,   and   the   covenants 

65.  Stimson,  Am.  Stat.  Law,  man  v.  Goodwin,  11  Ariz.  141,  89 
§  1501;  Rawle,  Covenants,  §§  285,  Pac.  517;  Crawford  v.  McDonald, 
286;  Polak  v.  Mattson,  22  Idaho  84  Ark.  415,  106  S.  W.  206;  Polak 
727,  128  Pac.  89;  Maitlen  v.  v.  Mattson,  22  Idaho  727,  128 
Maitlen,  44  Ind.  App.  559,  89  Pac.  89;  Waldermeyer  v.  Loebig, 
N.  E.  966;  Faller  v.  Davis,  .30  222  Mo.  540,  121  S.  W.  75; 
Okla.  56,  Ann.  Cas.  1913B,  1181,  Waslee  v.  Rossman,  231  Pa.  219, 
118  Pac.  382;  George  A.  Lowe  Co.  80  Atl.  643. 

v.    Simmons    Wareho'use    Co.,    39  67.     1  Stimson's  Am.  Stat.  Law, 

Utah    395,    Ann    Cas.    1913E,    246,  §      1500;      Rawle,     Covenants,      § 

117  Pac.   874.  286.     Ante,   §    49. 

66.  See  Mackintosh  v.  Stewart,  68.  Rawle,  Covenants,  §§  28, 
181    Ala.    328,    61    So.    956;    Sher-  29,    126. 

D.  P.— 31. 


1678  Real  Property.  [§  449 

are  construed  as  referring  to  the  land  conveyed.®*  The 
case  is  different  however,  when  there  is  no  description 
by  metes  and  bounds,  and  there  is  a  conveyance  of  a 
named  quantity  of  land,  a  certain  number  of  acres, 
for  instance,  in  a  particular  locality."^^ 

The  grantee  in  a  conveyance  cannot  assert  that 
there  is  a  breach  of  the  grantor's  covenant  for  title  by 
reason  of  the  fact  that  the  title  was,  at  the  time  of  the 
conveyance,  in  himself  and  not  in  the  grantor.  The 
covenant  extends  only  to  the  case  of  a  title  or  right 
in  a  third  person.''^ 

The  doctrine,  so  frequently  asserted,'-  that  a 
title  subsequently  acquired  by  a  grantor  enures  by 
operation  of  law  to  the  person  claiming  under  the 
conveyance,  has  been  applied  in  connection  with  cov- 
enants for  title,  with  the  effect  of  wholly  defeating  the 
right  of  action  on  the  covenant,  or  of  mitigating  the 
damages  recoverable  thereunder,  usually  to  the  extent 
of  excluding  all  substantial  damages."'^  The  covenantor 
has  not  ordinarily,  however,  been  allowed  to  assert  this 

69.  Rawle,  Covenants,  §  297;  (111.)  162;  Smiley  v.  PYies,  104 
Gulf  Coal  &  Coke  Co.  v.  Mus-  111.  416;  Harrigan  v.  Rice,  39 
grove,  195  Ala.  219,  70  So.  179;  Minn.  49,  38  N.  W.  765;  Fitch 
Ryan    v.    Batchelor,    95    Ark.    375,  v.    Baldwin,    17    Johns.     (N.    Y.) 

129  S.  W.  787;  Littleton  v.  Green,  161;     Eames    v.    Armstrong,    146 

130  Ga.    692,    61    S.   E.    593;    Bur-  N.    C.    1,    125    Am.    St.    Rep.    436, 
ton    V.    Cowles'    Admx,    156    Ky.  59  S.  E.  165;    Holt  v.  Ruleau,  83 
100,     160     S.    W.     782;     Mann     v.  Vt.    151,   74   Atl.    1005. 
Pearson,    2    Johns.     (N.    Y.)     37;  72.     Post.    §    545. 

McArthur    v.    Morris,     84    N.     C.  73.     Sayre     v.     Sheffield     Land, 

405;    Mosteller   v.   Astin,    61    Tex.  Iron    &    Coal    Co.,    106    Ala.    440, 

Civ.    App.    455,    129    S.    W.    1136;  18     So.     101;     King     v.     Gilson's 

Brown   v.    Yoakum,   —   Tex.    Civ.  Adm'x,     32     111.     348;     Baxter    v. 

App.—,     170     S.     W.     803.       But  Bradbury,    20    Me.    260;    Hartford 

see    Morris    v.    Owens,    3    Strobh.  Ore   Co.  v.   Miller,   41   Conn.   112; 

(S.   C.)    99.  Southern  Plantations  Co.  v.  Ken- 

70.  Pecare  v.  Chouteau,  13  nedy  Heading  Co.,  104  Miss.  131, 
Mo.  527;  Smith  v.  McGlothlin,  61  So.  166;  Reese  v.  Smith,  12 
— Tex.  Civ.  App. — ,  153  S.  W.  Mo.  344;  Morrison  v.  Underwood, 
655.  20    N.    H.    269;     Farmers'    Bank 

71.  Beebe  v.    Swartout,   3   Gil.  v.   Glenn,   68   N.   C.   35;    Cross  v. 


§  450]  Transfer  Inter  Vivos.  1G79 

after  acquired  title  by  way  of  defense  or  in  mitigation 
of  damages,  if  the  title  was  not  acquired  by  him  until 
after  eviction,'*  or  until  after  the  action  on  the  covenant 
was  commenced.'''^  The  propriety  of  allowing  a  vendor,  in 
any  case,  after  having  purported  to  convey  when  he 
had  no  title,  to  force  upon  an  unwilling  vendee  a 
title  subsequently  acquired  by  him,  after  the  property 
has  deteriorated  in  value,  has  boen  strongly  ques- 
tioned.'^ 

§  450.  Covenant  for  seisin.  The  covenant  by  the 
grantor  that  he  is  lawfully  seised  of  the  premises, 
called  the  ''covenant  of  or  for  seisin,"  has  different 
effects  in  different  juridictions,  "Seisin"  originally,  as 
before  stated,  meant  the  possession  of  land  by  one 
having  or  claiming  a  freehold  estate  therein,  either  by 
himself  or  by  another  in  his  behalf.'"  This  meaning  of 
"seisin"  has  been  adopted  in  two  or  three  states  in 
determining  the  effect  of  the  covenant,  and  the  covenant 
is  there  regarded  as  a  declaration  by  the  grantor  that 
he  is  in  possession,  claiming  such  an  estate  as  he 
undertakes  to  convey,  ordinarily  a  fee  simple  estate, 
so  that  the  fact  that  his  possession  is  tortious  does  not 

Martin,      46     Vt.      14;      Building  397,     54     N.     W.     89*;      Southern 

Light    &    Water    Co.    v.    Fray,    96  Plantations  Co.  v.  Kennedy  Head- 

Va.   559,   32   S.   E.   58;    McLennan  ing    Co.,    104    Miss.    131,    61    So. 

V.    Prentice,    85    Wis.    427,    55    N.  166;    Morris    v.    Phelps,    5    Johns. 

W.   764.  (N.    Y.)     49,    4    Am.     Dec.    323; 

74.  Burton  v.  Reeds,  20  Ind.  Tucker  v.  Clark,  2  Sandf.  Ch.  96; 
87;  Bethell  v.  Bethell,  92  Ind.  Rombough  v.  Koons,  6  Wash. 
318;  Blanchard  v.  Ellis,  1  Gray  558,  34  Pac.  135;  McLennan  v. 
(Mass.)  193;  Resser  v.  Carney,  Prentice,  85  Wis.  427,  55  N.  W. 
52  Minn.  397,  54  N.  W.  89;  764;  Contra.  Boulter  v.  Hamilton, 
Southern  Plantations  Co.  v.  Ken-  15  Up.  Can.  C.  P.  125;  Looney 
nedy  Heading  Co.,  104  Miss.  131,  v.  Reeves,  5  Kan.  App.  279,  48 
61    So.    166;    Jones    v.    Gallagh-er,  Pac.    606. 

54  Okla.  611,  154  Pac.  552;  Nichol  76.     See    Rawle,    Covenants,    §§ 

V.    Alexander,    28    Wis.    128;    Mc-  179-182;    Sedgwick,  Damages   (9th 

Innis  V.  Lyman,   62   Wis.   191,   22  Ed.)    §   977. 

N.  W.  405.  77.     Ante,   §   14. 

75.  Resser  v.  Carney,  52  Minn. 


K;80  Real  Property.  [§  450 

involve  a  breach  of  the  covenant,  though  there  is  a 
breach  if  another  is  in  adverse  possession. '^^  The 
covenant,  though  thus  limited  in  effect,  may  neverthe- 
less be  of  great  advantage  to  the  grantee  in  any  state 
which  still  recognizes  the  doctrine  that  a  conveyance  of 
land  in  the  adverse  possession  of  another  is  void;'^^ 
and  this  construction  of  the  covenant  presumably  owes 
its  origin  to  the  recognition  by  the  courts  of  the  prob- 
ability that  it  was  intended  to  secure  the  grantee 
against  the  possible  failure  of  the  conveyance  for  this 
cause.^*' 

In  a  majority  of  the  states,  as  in  England,  the 
above  view  of  the  covenant  of  seisin  has  not  been 
accepted,  but  if  has  been  construed  with  reference .  to 
the  meaning  which  the  words  ''seisin"  and  ''seised" 
acquired  after  the  Statute  of  Uses*^^  as  equivalent  to 
a  declaration  that  the  grantor  has  an  estate,  of  the 
quantum  which  he  undertakes  to  convey,  in  the  whole 
land  covered  by  the  conveyance.^^  Accordingly  the  cov- 
enant has   been   held  to   be   broken  when   the   grantor 

78.  Stearns  v.  Jewell,  27  Colo.  82.  McCormick  v.  Marcy,  165 
App.  390,  149  Pac.  846;  Cush-  Cal.  386.  1.32  Pac.  449;  Lockwood 
man  v.  Blanchard,  2  Me.  268,  11  v.  Sturdevant,  6  Conn.  385;  Efta 
Am.  Dec.  76;  Wilson  v.  Widen-  v.  Swanson,  115  Minn.  373,  132 
ham,  51  Me.  566;  Marston  v.  N.  W.  335;  Real  v.  Hollister,  20 
Hobbs,  2  Mass.  439.  3  Am.  Dec.  Neb.  112,  29  N.  W.  189;  Parker 
61;  Raymond  v.  Raymond,  10  v.  Brown,  15  N.  H.  186;  Greenby 
Cush.  (Mass.)  134;  Backus'  v.  Wilcocks,  2  Johns.  (N.  Y.)  1, 
Adm'rs  v.  McCoy,  3  Ohio,  211,  17  3  Am.  Dec.  379;  Fishel  v.  Brown- 
Am.  Dec.  585;  Stambaugh  v.  ing,  145  N.  Car.  71,  58  S.  E.  759; 
Smith,  23  Ohio  St.  584;  Wetzell  Joiner  v.  Ardmore  Loan  &  Trust 
V.  Richcreek,  53  Ohio  St.  62,  40  Co.,  33  Okla.  266,  124  Pac.  1073; 
N.  E.  1004.  See  also,  Bottorf  v.  Cobb  v.  Klosterman,  58  Ore.  211. 
Smith,  7  Ind.  673;  Axtel  v.  Chase.  114  Pac.  96;  Pringle  v.  Witten's 
77  Ind.  74;  Scott  v.  Twiss,  4  Neb.  Ex'rs,  1  Bay  (S.  C.)  256.  1  Am. 
133;  Webb  v.  Wheeler,  80  Neb.  Dec.  612;  Woods  v.  North,  6 
438,  17  L.  R.  A.  (N.  S.)  1178,  Humph.  (Tenn.)  309,  44  Am. 
114  N.  W.  636.  Dec.  312;   Wick  v.  Rea,  54  Wash. 

79.  See  post,   §   590.  424,     103     Pac.    462.      It     is     "an 

80.  Rawle,  Covenants,  §§  47-54.  assurance    to    the    purchaser    that 

81.  A7ite,  §  14.  the   grantor   has   the   very   estate 


§  450] 


Transfer  Inter  Vivos. 


1681 


bad  no  title  to  the  land,  that  is,  no  rightful  estate 
therein,^"^  and  likewise  when  one  tenant  in  common 
purported  to  convey  an  estate  in  severalty  in  the  land.*^ 
It  has  also  been  regarded  as  broken  by  the  fact  that 
things  annexed  to  the  joremises  are  subject  to  a  right  of 
removal  in  a  third  person,^^  and  by  the  fact  that  rights 
properly  appurtenant  to  the  land,  or  which  purport  to 
be  conveyed  therewith,  such  as  a  right  of  flowage,  are 
not  vested  in  the  grantor  so  as  to  pass  with  the  land.*^ 
The  covenant  is  not  broken  by  the  existence  of  a  lien 
on  the  land,^'  or  of  a  right  of  use  in  a  third  person  or 
in  the  public.^^ 

Whether,   in   states   in  which   an   outstanding   title 
is    regarded   as   involving   a   breach,^^   apart   from   any 


in  quantity  and  quality  which 
he  purports  to  convey."  Howell 
V.  Richards,  11  East.  641,  per 
Lord    EUenborough. 

83.  Anderson  v.  Knox,  20  Ala. 
156;  Abbott  v.  Rowan,  .33  Ark. 
593;  McCormick  v.  Marcy,  165 
Cal.  386,  132  Pac.  44;  Zent  v. 
Picken,  54  Iowa,  535,  6  N.  W. 
750;  Allen  v.  Allen,  48  Minn. 
462,  51  N.  W.  473;  Cockrell  v. 
Proctor,  65  Mo.  41;  Arnold  v. 
Joines,   50   Okla.   4,   150   Pac.   130. 

84.  Hartford  Ore  Co.  v.  Miller, 
41  Conn.  112;  Hencke  v.  Johnson, 
62  Iowa,  555,  17  N.  W.  766;  Sedg- 
wick V.  Hollenback,  7  Johns.  (N. 
Y.)  376;  Downer's  Adm'rs  v. 
Smith,  33  Vt.  464. 

85.  Van  Wagner  v.  Van  Nos- 
trand,  19  Iowa,  427;  Mott  v.  Pal- 
mer, 1  N.  Y.  564;  Herzog  v.  Marx, 
202   N.   Y.    94   N.    E.    1063. 

86.  Seyfried  v.  Knoblauch,  44 
Colo.  86,  96  Pac.  993;  Traster 
V.  Nelson's  Adm'r,  29  Ind.  96; 
Ballard  v.  Child,  34  Me.  355; 
Adams  v.  Conover,  87  N.  Y.  422, 
41     Am.     Rep.     381 ;     Walker     v. 


Wilson,   13   Wis.   522. 

In  Clark  v.  Conroe,  38  Vt. 
469,  it  was  held  that  the  fact 
that  a  third  person  had  been 
given  the  right  to  divert  the 
water  from  a  spring  on  the 
premises  involved  a  breach  of  the 
covenant,  upon  the  somewhat 
doubtful  ground  that  this  involv- 
ed the  grant  to  another  of  a 
part    of    the    land    itself. 

87.  Fitzhugh  v.  Croghan,  2  J. 
J.  Marsh  (Ky.)  429,  19  Am.  Dec. 
139;  Sedgwick  v.  Hollenback,  7 
Johns.  (N.  Y.)  376;  Zerfing  v. 
Seelig,  14  S.  Dak.  303,  85  N.  W. 
585    (taxes). 

88.  Moore  v.  Johnston,  87  Ala. 
220,  6  So.  50;  Douglass  v.  Thom- 
as, 103  Ind.  187,  2  N.  E.  562; 
Ginn  v.  Hancock,  31  Me.  42; 
Kellogg  V.  Malin,  50  Mo.  496,  11 
Am.  Rep.  426;  Blondeau  v. 
Sheridan,  81  Mo.  545;  Contra, 
Haynie  v.  American  Trust  Invest. 
Co.,  (Tenn.  Ch.),  39  S.  W.  860; 
Perry  v.  Williamson,  (Tenn.  Ch.), 
47   S.  W.  189. 

89.  A7ite.  this  section,  note  82. 


1682  Bead  Property.  [§  450 

question  of  the  right  to  convey  land  in  another's 
adverse  possession,  the  mere  fact  that  the  land  is 
in  another's  possession  constitutes  a  breach  of  the 
covenant  does  not  clearly  appear.^*'  There  is  a  breach, 
it  seems  evident,  if  the  adverse  possession  has  already 
continued  for  such  a  length  of  time  as  to  give  title. ^^ 

That  the  grantor  had  a  life  estate  merely  in  the 
land  has  been  held  to  involve  a  breach  of  the  covenant 
for  seisin,^^  but  in  each  of  the  cases  to  this  effect  the 
covenant  was  in  express  terms  for  seisin  in  fee  simple. 
That  his  estate  in  fee  simple  was  subject  to  a  life 
estate  in  another  has  also  been  regarded  as  involving 
a  breach.^3  An  outstanding  inchoate  right  of  dower 
does  not  involve  a  breach.^* 

Wliether  an  outstanding  term  of  years  created  by 
lease  involves  a  breach  of  the  covenant  is  a  matter  upon 
which  the  decisions,  few  in  number,  are  not  entirely  in 
accord.''^  The  solution  of  the  question  in  any  particu- 
lar case  may  depend,  it  has  been  suggested,  to  some 
extent  at  least,  upon  the  surrounding  circumstances, 
as  showing  the  intention  of  the  parties  in  this  regard.^® 

90.  See  Rawle,  Covenants,  §  J.  Marsh  (Ky.)  429,  19  Am.  Dec. 
54,  note.  That  it  is  a  breach  ap-  139;  Whisler  v.  Hicks,  5  Blackf. 
pears  to  be  asserted  in  Lindsay  (Ind.)  100,  33  Am.  Dec.  454; 
V.  Veasy,  62  Ala.  421;  Mackintosh  Kuntzman  v.  Smith,  77  N.  J. 
V.  Stewart,  181  Ala.  328,  61  So.  Eq.  30,  75  Atl.  1009;  Lewis  v. 
956;  Fitzhugh  v.  Croghan,  2  J.  Lewis,  5  Rich.  Law  (S.  Car.)  12; 
J.  Marsh  (Ky.)  430,  19  Am.  Dec.  Building,  Light  &  Water  Co.  v. 
139;  Thomas  v.  Perry,  Peters  Fray,  96  Va.  559,  32  S.  E.  58; 
C.   C.   49.  Nor  a  right  of  dower  consummate 

91.  Wilson  V.  Forbes,  2  Dev.  before  assignment  of  dower. 
(N.  Car.)  30.  See  Larson  v.  Fishel  v.  Browning,  145  N.  C. 
Goettl,  103  Minn.  272,  114  N.  W.  71,  58  S.  E.  759. 

840,    commented    on    in   21    Harv.  95.     That   it    is   not  within   the 

Law  Rev.  628.  covenant,    see    Lindley    v.    Dakin, 

92.  Frazer  v.   Board   of  Super-  13  Ind.  389;    Kellum  v.  Berkshire 
visors,    74    111.    282;    Lockwood   v.  Life  Ins.  Co.,  101  Ind.  455.     That 
Sturdevant,  6   Conn.  373;    Tanner  it    is,    see    Langenberg    v.    Herr 
V.   Livingtone,   12   Wend.    (N.  Y.)  Dry  Goods  Co.,  74  Mo.  App.  12. 
83.  96.     See    Rawle,    Covenants,    § 

93.  Mills  V.  Catlin,  22  Vt.  106.  58,  note. 

94.  Fitzhugh   v.   Croghan,   2   J. 


§§  451,  452]  Transfer  Inter  Vivos.  1683 

§  451.  Covenant  for  right  to  convey.  The  covenant 
that  the  grantor  has  a  right  to  convey  the  land  is  usu- 
ally equivalent  to  the  covenant  for  seisin,  whichever 
view  of  the  operation  of  the  latter  covenant  may  he 
taken  in  the  particular  jurisdiction,  and  similar  con- 
siderations determine  the  question  of  breach  in  the 
case  of  each  covenant.^"  There  may,  however,  be 
a  right  to  convey,  though  there  is  no  seisin  or  title, 
as  when  the  conveyance  is  under  a  power,^^ 

§  452.  Covenant  against  incumbrances.  An  "in- 
cumbrance," as  the  term  is  used  in  a  covenant  that  the 
premises  are  free  and  clear  of  all  incumbrances,  has 
been  defined,  in  a  general  way,  as  "every  right  to  or 
interest  in  the  land  which  may  subsist  in  third  persons, 
to  the  diminution  of  the  value  of  the  land,  but  con- 
sistent with  the  passing  of  the  fee  by  the  conveyance.''^ 

A  lien^  is  ordinarily  an  incumbrance,  w^hether  it  is 

97.  Peters  v.  Bowman,  98  U.  99.  Rawle,  Covenants,  §  75; 
S.  56,  25  L.  Ed.  91;  Copeland  v.  Tuskegee  Land  &  Security  Co.  v. 
McAdory,  100  Ala.  553,  13  So.  Birmingham  Realty  Co.,  161  Ala. 
545;  Adams  v.  SchifEer,  11  Colo.  542,  49  So.  378,  23  L.  R.  A.  (N. 
15,  7  Am.  St.  Rep.  202;  Mitchell  S.)  992;  Fraser  v.  Bentel,  161 
V.  Kepler,  75  Iowa,  207,  39  N.  W.  Cal.  390,  119  Pac.  509,  Ann.  Cas. 
241;  Allen  v.  Say  ward,  5  Me.  227;  1913B,  1062;  Kelsey  v.  Remer, 
Baldwin  v.  Timmins,  3  Gray.  43  Conn.  129,  21  Am.  Rep.  638; 
(Mass.)  302;  Willard  v.  Twit-  Prescott  v.  Trueman,  4  Mass.  630, 
chell,  1  N.  H.  177;  Faller  v.  3  Am.  Dec.  246;  Simons  v.  Dia- 
Davis,  30  Okla.  56,  Ann.  Cas.  mond  Batch  Co.,  159  Mich.  241, 
1913B,  1181,  118  Pac.  382;  Build-  123  N.  W.  1132;  Carter  v.  Den- 
ing,  Light  &  Water  Co.  v.  Fray,  man's  Ex'rs,  23  N.  J,  L.  260; 
96  Vt.  559,  32  S.  E.  58.  Huyck   v.   Andrews,  N.   Y.   81,    10 

98.  Rawle,  Covenants,  §  06.  Am.  St.  Rep.  432;  Lafferty  v. 
See  Devore  v.  Sunderland,  17  Milligan,  165  Pa.  St.  534,  30 
Ohio,  52,  49  Am.  Dec.  442;   Slater  Atl.    1030. 

V.  Rawson,  6  Mete.   (Mass.)    439.  1.     See  post,  Part  6. 


1684 


Real.  Property. 


[§  452 


a  mortgage,^  a  judgment  lien,''  a  lien  for  taxes,^  or  any- 
other  of  the  various  classes  of  liens.^ 

An    easement    is,    generally    speaking,    an    ineum- 
brance,''"   as   has   been   recognized,   for   instance,   in   the 


2.  Bean  v.  Mayo,  5  Me.  94; 
Brooks  V.  Moody,  25  Ark.  452; 
McLaughlin  v.  Rice,  108  Iowa, 
254,  78  N.  W.  1105;  Wyman  v. 
Ballard,  12  Mass.  304;  Hasselbuch 
V.  Mohm-King,  76  N.  J.  L.  G91, 
73  Atl.  961;  Corbett  v.  Wrenn, 
25  Or.  305,  35  Pac.  658;  Funk  v. 
Voneida,  11  Serg.  &  R.  (Pa.) 
109,  14  Am.  Dec.   617. 

3.  Jenkins  v.  Hopkins,  8  Pick. 
(Mass.)  346;  Holman  v.  Creag- 
miles,  14  Ind.  177;  Hall  v.  Dean, 
13  Johns.  (N.  Y.)  105;  Jones  v. 
Davis,    24   Wis.    229. 

4.  FuUer  v.  Jillett  (C.  C),  2 
Fed.  30;  Crowell  v.  Packard,  35 
Ark.  348;  Almy  v.  Hunt,  48  HI. 
45;  Cochran  v.  Guild,  106  Mass. 
29,  8  Am.  Rep.  296;  Eaton  v. 
Chesebrough,  82  Mich.  214,  46  N. 
W.  365;  Campbell  v.  McClure,  45 
Neb.  608,  63  N.  W.  920;  Cadmus 
V.  Fagan,  47  N.  J.  Law  549.  4 
Atl.  323;  Plowman  v.  Williams, 
6  Lea  (Tenn.)  268;  George  A. 
Lowe  Co.  V.  Simmons  Warehouse 
Co.,  39  Utah  395,  117  Pac.  874. 
Ann.  Cas.  1913E,  246. 

So  the  lien  of  a  special  assess- 
ment for  the  benefits  of  a  munic- 
ipal improvement.  Maloy  v. 
Hall,  190  Mass.  277,  76  N.  E. 
452;  Real  Estate  Corp.  of  New 
York  City  v.  Harper,  174  N.  Y. 
123,  66  N.  E.  660;  Green  v.  Tid- 
ball.  26  Wash.  338,  55  L.  R.  A. 
879,  67  Pac.  84. 

Under  some  tax  systems,  taxes 
may  be  an  incumbrance  within 
the  covenant  although  the  amount 


thereof  has  not  been  ascertained 
at  the  time  of  conveyance. 
Hill  V.  Bacon,  110  Mass.  387; 
Pierse  v.  Bronnenberg's  Estate, 
40  Ind.  App.  662.  81  N.  E.  739, 
82  N.  E.  126;  George  A.  Lowe 
Co.  V.  Simmons  Warehouse  Co., 
39  Utah  395,  117  Pac.  874,  Ann. 
Cas.  1913E,  246;  Peters  v.  Myers, 
22  Wis.  602.  And  likewise  lia- 
bility to  payment  of  benefits  for 
a  municipal  improvement  may 
constitute  an  incumbrance  even 
before  the  amount  of  the  bene- 
fits is  ascertained.  See  First 
Church  of  Christ,  Scientists,  of 
New  Albany,  v.  Cox,  47  Ind.  App. 
536,  94  N.  E.  1048;  Cotting  v. 
Commonwealth,  205  Mass.  523,  91 
N.  E.  900:  Hartshorn  v.  Cleve- 
land, 52  N.  J.  L.  473,  19  Atl. 
974;  Lafferty  v.  Milligan,  165  Pa. 
534,  30  Atl.  1030;  Bowers  v. 
Narragansett  Real  Estate  Co..  28 
R.  I.  365.  67  Atl.  521;  Knowles 
V.  Temple,  49  Wash.  595,  96  Pac. 
1. 

5.  So,  an  attachment  lien 
(Kelsey  V.  Remer,  43  Conn.  129, 
21  Am.  Rep.  638,  and  Norton  v. 
Babcock,  2  Mete.  [Mass.]  510); 
a  vendor's  lien  (Thomas  v.  St. 
Paul's  M.  E.  Church,  86  Ala.  138. 
5  So.  508). 

6.  Weiss  v.  Binnian.  178  111. 
241,  52  N.  E.  969,  Mackey  v. 
Harmon,  34  Minn.  168,  24  N. 
W.  702;  Jarvis  v.  Buttrick,  1 
Mete.  (Mass.)  480;  Smith  v. 
Davis,  44  Kan.  362,  24  Pac.  428; 
Huyek    v.    Andrews,    113    N.    Y. 


§  452] 


Transfer  Inter  Vivos. 


1685 


case  of  a  private  right  of  way  over  the  land  conveyed," 
a  right  to  maintain  a  drain  or  artificial  water  course 
thereon,^  or  a  right  to  flow  the  land.^  An  easement, 
however,  created  hj  ''implication"  upon  the  convey- 
ance of  a  quasi  servient  tenement,  has  been  regarded  as 
not  within  a  covenant  against  incumbrances  in  such 
a  conveyance,  or  as  in  any  way  affected  by  such 
covenant/^  A  natural  right  in  the  owner  of  neighbor- 
ing land,  such  as  a  right  to  the  uninterrupted  flow  of  a 
stream,^-  is  not  within  such  a  covenant,^^  but  a  privilege 
in  a  third  person  to  interfere  with  such  a  natural 
right,  being  in  the  nature  of  an  easement,^^  is  within 
it,^^  as  is  the  privilege  of  taking  water  from  a  sjiring  or 
stream  on  the  land.^*^ 

A  covenant  as  to  the  use  of  land,  or  a  restriction 


81.  3  L.  R.  A.  789.  10  Am.  St. 
Rep.  432.  20  N.  E.  581;  Smith 
T.  White,  71  W.  Va.  639.  48  L. 
R.    A.    (N.    S.)    623,   78   S.   E.   378. 

7.  Mitchell  v.  Warner.  5  Conn. 
497;  Newmyer  v.  Roush,  21  Idaho, 
106  Ann  Cas.  1913D,  433,  120  Pac. 
464;  MeGowen  v.  Myers,  60 
Iowa  256;  14  N.  W.  788;  Blake 
V.  Everett,  1  Allen  (Mass.)  248; 
Wilson  V.  Cochran,  46  Pa.  St. 
229. 

8.  Prescott  v.  White,  21  Pick. 
(Mass.)  341,  32  Am.  Dec.  266: 
Johnson  v.  Knapp,  146  Mass.  70, 
15  N.  E.  134;  McMullin  v.  Wooley, 
2  Lans.  (N.  Y.)  394;  Smith  v. 
Spragne,     40    Vt.     43. 

9.  Scriver  v.  Smith.  100  N. 
Y.  471.  53  Am.  Rep.  224;  Lamb 
V  Danforth,  59  Me.  322;  Isele  v. 
Arlington  Five  Cent  Savings 
Bank.  135  Mass.  142;  Patterson 
V.  Sweet,  3  111.  App.  550.  But 
see  as  to  the  rule  in  Maine  and 
Massachusetts,  as  affected  by  the 
flowage  acts  of  those  states, 
Rawle.  Covenants,  §   83. 


10.  Ante,    §    363(b). 

11.  Cary  v.  Daniels,  8  Mete. 
(Mass.)  466,  41  Am.  Dec.  532; 
Dunklee  v.  Wilton  R.  Co..  24  N. 
H.  489;  Harwood  v.  Benton,  32 
Vt.  724;  Bennett  v.  Booth,  70 
W.  Va.  264.  39  L.  R.  A.  (N.  S.) 
618.  73  S.  E.  909;  Kutz  v.  Mc- 
Cune,  22  Wis.  628.  99  Am.  Dec. 
85.  See  Rawle,  Covenants,  § 
85.  Compare  Denman  v.  Mentz, 
63  N.  J.   Eq.   613,   52   Atl.   1117. 

12.  Ante,    §§   335-347. 

13.  Prescott  v.  Williams,  5 
Mete.  (Mass.)  429.  See  Corse 
V.  Dexter,  202  Mass.  31,  88  N. 
E.  332. 

14.  Ante,   §§  351,  352. 

15.  Huyck  V.  Andrews,  113  N. 
Y.  81,  3  L.  R.  A.  789,  10  Am.  St. 
Rep.  432,  20  N.  E.  581;  Morgan 
V.  Smith,  11  111.  199.  But  see 
Cary  v.  Daniels,  8  Mete.  (Mass.) 
466,  41  Am.  Dec.  532. 

16.  Morgan  v.  Smith,  11  111. 
194;  Mitchell  v.  Warner,  5  Conn. 
497. 


1686 


Eeal  Peopeety. 


[§  452 


upon  its  use,  wlietlier  enforceable  at  law  or  in  equity, 
is  a  breach  of  the  covenant  against  incumbrances,^^  as 
is  an  obligation  upon  the  owner  of  the  land  to  maintain 
a  fence. ^^  A  right  to  take  profits  from  the  land  is 
also  an  incumbrance.^® 

A  public  highway  has  in  some  cases  been  regarded 
as  within  the  covenant,-^  though  in  others  a  different 
view  has  been  adopted  as  to  a  rural  highway,  on  the 
theory,  either  that  the  existence  of  the  highway,  or 
of  the  system  of  which  it  forms  a  part,  is  presumably 
a  benefit  to  the  property,  or  that  it  may  be  presumed  to 
have  been  known  to  the  purchaser  and  considered  in 
adjusting  the   price   paid  for   the  land.^^     Likewise   a 


17.  Fraser  v.  Bentel,  161  Cal. 
390,  Ann.  Cas.  1913B,  1062,  119 
Pac.  509;  Hatcher  v.  Andrews,  5 
Bush  (Ky.)  561;  Halle  v.  New- 
bold,  69  Md.  265,  14  Atl.  662; 
Locke  V.  Hale,  165  Mass.  20,  42 
N.  E.  331;  Foster  v.  Foster,  62 
N.  H.  46;  Roberts  v.  Levy,  3  Abb. 
Pr.  Rep.  (N.  S.)  311;  Docter  v. 
Darling,  68  Hun  N.  Y.)  70; 
Greene  v.  Creighton,  7  R.  I.  1; 
Williams  v.  Hewitt,  57  Wash. 
62,  135  Am.  St.  Rep.  971,  106  Pac. 
496.  But  see  Thurgood  v.  Spring, 
139  Cal.   596,  73   Pac.  456. 

18.  Bronson  v.  Coffin,  108 
Mass.  175,  11  Am.  Rep.  335;  Bur- 
bank  V.  Pillsbury,  48  N.  H.  475, 
97  Am.  Dec.  633. 

19.  Brodie  v.  New  England 
Mortg.  Sec.  Co.,  166  Ala  170,  51 
So.  861;  Weiss  v.  Binman,  178 
111.  241  (right  to  cut  ice) ;  Spurr 
V.  Andrew,  6  Allen  (Mass.)  420; 
Stambaugh  v.  Smith,  23  Ohio  St. 
584.  Kreinbring  v.  Matthews, 
81  Ore.  243,  159  Pac.  75;  Cathcart 
V.  Bowman,  5  Pa.  St.  317:  Gadow 
V.  Hunhaltz,  160  Wis.  293,  151 
N.  W.  810    (right  to  cut  ice). 


20.  De  Jaruette  v.  Dreyfus,  166 
Ala.  138,  51  So.  932;  Hubbard  v. 
Norton,  10  Conn.  423;  Burk  v. 
Hill,  48  Ind.  52,  17  Am.  Rep. 
731;  Herrick  v.  Moore,  19  Me. 
313;  Kellogg  v.  Ingerson,  2  Mass. 
101;  Kellogg  v.  Malin,  50  Mo. 
496,  11  Am.  Rep.  426;  Butler  v. 
Gale,  27  Vt.  739;  Trice  v.  Kayton, 
84  Va.  217,  10  Am.  St.  Rep.  836, 
4  S.  E.  377.  See  in  support  of 
such  a  view,  editorial  notes  13 
Columbia  Law  Rev.  655,  27  Harv. 
Law   Rev.    386. 

21.  Des  Vergers  v.  Willis,  56 
Ga.  515,  21  Am.  Rep.  289;  Harri- 
son V.  Des  Moines  &  Ft.  D.  Ry. 
Co.,  91  Iowa  114,  58  N.  W.  1081; 
Sandum  v.  Johnson,  122  Minn. 
368,  48  L.  R.  A.  N.  S.  619,  142 
N.  W.  878;  Killen  v.  Funk,  83 
Neb.  622,  131  Am.  St.  Rep.  658, 
120  N.  W.  189;  Whitbeck  v.  Cook. 
15  Johns.  (N.  Y.)  483;  Huyck  v. 
Andrews,  113  N.  Y.  81,  10  Am. 
St.  Rep.  432,  3  L.  R.  A.  789,  20 
N.  E.  581;  Patterson  v.  Arthurs, 
9  Watts  (Pa.)  152;  Wilson  v. 
Cochran,  46  Pa.  St.  233;  Deacons 
V.    Doyle,    75    Va.    258;    Barre   v. 


§  452] 


Transfer  Inter  Vivos. 


1687 


railroad  right  of  way  has  in  some  cases  been  regarded 
as  an  incumbrance  for  this  purpose,--  and  in  some 
cases  has  not  been  so  regarded.-" 

The  existence  of  a  right  of  dower,  whether  in- 
choate or  consummate,  has  been  regarded  as  involving 
a  breach  of  the  covenant,-^  as  has  a  lease  for  years 
outstanding  in  a  third  person.-^  Occasionally  the 
fact  that  by  reason  of  a  release,  or  by  legislation  of  a 
particular  character,  the  grantee  will  be  unable  to 
recover    the    normal    damages    for    the    making    of    a 


Fleming,  29  W.  Va.  314,  325,  1 
S.  E.  731;  Kutz  v.  McCune,  22 
Wis.  628,  99  Am.  Dec.  85. 

A  like  view,  that  it  is  not  an 
incumbrance,  tias  been  taken  as 
regards  a  county  drainage  ditch, 
Stuhr  V.  Butterfield,  151  Iowa 
736,  36  L.  R.  A.  N.  S.  321,  130 
N.  W.  897,  an  irrigation  ditch 
authorized  by  Congress  for  recla- 
mation of  arid  land.  (Schurger 
V.  Mooreman  20  Idaho  97,  36  L. 
R.  A.  N.  S.  313,  A.  &  E.  Ann. 
Cas.  1912D,  1114,  117  Pac.  122. 
Compare  Feldhut  v.  Brummitt, 
96  Kan.  127,  150  Pac.  549).  And 
a  public  sewer.  First  Unitarian 
Society  of  Iowa  City  v.  Citizens 
Sav.  &  Trust  Co.,  162  Iowa,  389, 
51  L.  R.  A.  (N.  S.)  428,  Ann.  Cas. 
1916B,  575,  142  N.  W.  87,  com- 
mented on  in  editorial  notes  13 
Columbia  Law  Rev.  655,  1  Vir- 
ginia Law  Rev.  79. 

Such  a  view  has,  however,  been 
regarded  as  not  applicable  when 
the  fpublic  easement  was  not 
apparent.  Hymes  v.  Estey,  116 
N.  Y.  501,  15  Am.  St.  Rep.  421, 
22  N.  E.  1087;  Howell  v.  North- 
ampton Railway  Co.,  211  Pa.  284, 
60  Atl.  793.  Contra,  Sandum  v. 
Johnson,  122  Minn.  368,  48  L.  R. 


A.   N.   S.   619,   142   N.   W.   878. 

22.  Beach  v.  Miller,  51  111. 
206,  2  Am.  Rep.  290;  Wadhams 
V.  Swan,  109  111.  46;  Quick  v. 
Taylor,  113  Ind.  540,  16  N.  E. 
588;  Barlow  v.  McKinley,  24 
Iowa  69;  Kellogg  v.  Malin,  50 
Mo.  496,  11  Am.  Rep.  426;  Pritch- 
ard  V.  Rebori,  135  Tenn.  328,  186 
S.  W.  121;  Farrington  v.  Tur- 
telott  (C.  C.)    39  Fed.  738. 

23.  Geren  v.  Caldarara,  99  Ark. 
260,  138  S.  W.  335;  Van  Ness  v. 
Royal  Phosphate  Co.,  60  Fla.  284, 
30  L.  R.  A.  N.  S.  833,  Ann.  Cas. 
1912C,  647,  53  So.  381;  Goodman 
V.  Heilig,  157  N.  C.  6,  36  L.  R. 
A.   N.   S.   1004,   72    S.   S.   866. 

24.  Barnett  v.  Gaines,  8  Ala. 
373;  McCord  v.  Massey,  155  111. 
123,  39  N.  E.  592;  Porter  v. 
Noyes,  2  Me.  22,  11  Am.  Dec. 
30;  Runnels  v.  Webber,  59 
Me.  488;  Bigelow  v.  Hubbard,  97 
Mass.  195;  Crowley  v.  C.  N.  Nel- 
son Lumber  Co.,  66  Minn.  400, 
69  N.  W.  34;  Walker's  Adm'r  v. 
Deaver,  79  Mo.  664;  Russ  v. 
Perry,  49  N.  H.  547;  Carter  v. 
Denman's  Ex'rs,  23  N.  J.  Law 
260;  Fishel  v.  Browning,  145  N. 
Car.  71,  58  S.  E.  759. 

25.  Crawford   v.   McDonald,   84 


1688  Real  Property.  [§  452 

public   improvement,  has   been  viewed  as   involving   a 
breach  of  the   covenant.-*^ 

It  is  stated  by  the  leading  authority  on  the  sub- 
ject that  the  character  of  the  outstanding  right  or 
interest  is  not  always  sufficient  to  determine  whether 
it  constitutes  an  incumbrance,  within  the  particular 
covenant  in  question,  but  in  some  cases  the  question 
must  be  determined  by  reference  to  "the  subject-mat- 
ter of  the  contract,  the  relation  of  the  parties  to  it  and 
to  each  other,  the  notice  on  the  part  of  the  purchaser, 
and,  to  some  extent,  the  local  usage  and  habit  of  the 
country.  "^'^  So,  in  determining  whether  a  certain  in- 
cumbrance is  within  the  covenant,  the  whole  convey- 
ance is  to  be  considered  and  not  merely  the  clause  con- 
taining the  covenant.  Thus,  when  the  conveyance 
expressly  provides  that  the  grantee  will  pay  the  mort- 
gage debt^^  or  that  he  takes  subject  to  the  mortgage,^^ 
the  existence  of  the  mortgage  is  not  a  breach  of  the 
covenant,  though  not  expressly  excepted  therefrom,  and 

Ark.   415,   106   S.   W.   206;    Musial  O'Connor  v.   Enos,   56  Wash.   448, 

V.   Kudlik,   87   Conn.    164,   87   Atl.  105    Pac.    1039. 

551;    Wragg  &   Son  v.   Mead,   120  26.     Tuskegee  Land  &  Security 

Iowa   319,   94  N.  W.   856;    Barker  Co.    v.    Birmingham    Realty    Co., 

V.  Denning,  91  Kan.  485,  138  Pac.  1^1  Ala.  542,  23  L.  R.  A.   (N.  S.) 

573;      Batchelder     v.     Sturgis,     3  ^^2,     49      So.     378;      Forster     v. 

Cush.     (Mass.)     201;     Simons    v.  ^cott,  136  N.  Y.  577.  18  L.  R.  A. 

Diamond    Match    Co.,    159    Mich.  ^43,  32  N.  E.  976;    Evans  v.  Tay- 

241,    123    N.    W.     1132;     Fritz    v.  ^^Z'     ^^^    ^^-    ^86,    69    L.     R.    A. 

Pusey,    31    Minn.    368,    18    N.    W.  ^  ,1  \^^\   ^^^-  ,      ,  ,, 

„,      „  ,,  27.     Rawle,  Covenants,  §  76. 

94;    Brass    v.    \andecar,    70    Neb.  oo      Tir  ♦+  ttt  i  a  t.t    tt 

'  28.     Watts  v.  Welman,  2  N.  H. 

35,    96    N.   W.    1035;    Malsbary   v.  ^gg 

Jacobuis,  88  Neb.  751,  130  N.  W.  29.     Freeman  v.  Foster,  55  Me. 

424;    Demars  v.  Koehler,  62  N.  J.  508;     Drury    v.    Holden,    121    lU. 

L.    203.    72    Am.    St.    Rep.    642.    41  130,    13    N.    E.    547;     Johnson    v. 

Atl.    720;     Grice    v.    Scarborough,  Nichols,  105  Iowa,  122;  Walther  v. 

2  Speers  (S.  C.)   649,  42  Am.  Dec.  Briggs,     69     Minn.     98;     Jackson 

391;    Brown  v.  Taylor,  115  Tenn.  v.  Hoffman,  9  Cow.    (N.  Y.)    271; 

1,  4  L.  R.  A.  N.  S.  309,  112  Am.  Brown     v.     South     Boston     Sav. 

St.     Rep.     811,     88     S.     W.     933;  Bank,    148    Mass.    300,    19    N.    E. 

Sawyer     v.     Little,     4     Vt.     414;  382. 


§  452]  Transfer  Inter  Vivos.  1680 

even  in  states  where  a  highway  is  regarded  as  an  in- 
cumbrance, though  a  conveyance  of  land  as  bounded 
by  a  highway  passes  the  land  to  the  center  of  the 
highway,  subject  to  the  highw^ay  use,  the  grantor  is  not 
liable  under  his  covenant  on  account  of  such  highway.^*^ 
Likewise,  if  the  conveyance  is  expressed  to  be  subject 
to  an  easement,  the  covenantee  cannot  assert  that  the 
easement  constitutes  a  breach  of  the  covenant.^ ^  And 
while  ordinarily  an  outstanding  lease  on  the  premises 
has  been  regarded  as  an  incumbrance,^-  a  different 
view  has  occasionally  been  taken  when  the  grantor  in 
terms  transferred  to  the  grantee  and  the  grantee  ac- 
cepted the  benefit  of  the  lessee's  stipulations  as  to  rent 
and  the  like.'^" 

In  several  cases,  the  fact  that  the  grantee  had 
orally  agreed  to  pay  the  taxes  has  been  held  to  show 
that  the  lien  for  taxes  was  not  w^ithin  the  operation 
of  the  covenant,^*  and  a  like  view  has  been  taken  as 
to  a  mortgage  the  payment  of  which  the  gran- 
tee had,  by  an  extraneous  agreement,  assum- 
ed.^^  In  some  cases  the  fact  that  the  grantee 
had  notice,  actual  or  constructive,  of  a  highw^ay  upon 
the  land,  has  been  regarded  as  taking  such  incumbrance 
out  of  the  operation  of  the  covenant.^^    In  two  or  three 

30.  Frost  V.  Angier,  127  Mass.      W.    1132. 

212;     Patten    v.    Fitz,    138    Mass.  34.     Fitzer    v.    Fitzer,    29    Ind. 

456;    Holmes  v.  Danforth,  83  Me.  468;    Blood    v.    Wilkins,    43    Iowa 

139,    21    Atl.    845;     City    of    Cin-  565;     Gill    v.    Ferrin,     71    N.    H. 

cinnati  v.   Brachman,  35  Ohio  St.  421,    52    Atl.    558.    Contra,    Pierse 

289.  T.  Bronnenberg,  40  Ind.  App.  662, 

31.  Pettee   v.   Hawes,    13   Pick.  81  N.  E.  739;   82  N.  E.  126. 
(Mass.)   323.  35.     Watts  v.  Welman,  2  N.  H. 

32.  Ante,  this  section,  note  25.  458;    Reid   v.    Sycks,    27   Ohio   St. 

33.  Mann     v.     Montgomery,     6  285.     And   see   post,   this  section, 
Cal.  App.  646,  92  Pac.  875;    Hald-  note  42. 

ane     v.     Sweet,     55     Mich.     196,  36.     Des    Vergers    v.    Willis,    56 

20  N.  W.  902;   Pease  v.  Christ,  31  Ga.  515,  21  Am.  Rep.  289;    Crans 

N.    Y.    141.      See    Musial   v.    Kud-  v.  Durdall,   154   Iowa  468,   134   N. 

Ilk,    87    Conn.    164,    87    Atl.    551.  W.  1068;  Weller  v.  Fidelity  Trust 

And  compare  Simons  v.  Diamond  &  S.  V.  Co.,  23  Ky.  L.  Rep.  1136, 

Match  Co.,  159  Mich.  241,  123  N.  64    S.    W.    843;    Hymes   v.    Estey, 


1G90 


Real  Propebty. 


[^  452 


cases  the  fact  that  the  existence  of  an  incumbrance  in 
favor  of  an  individual  was  apparent  upon  an  inspec- 
tion of  the  land,  and  that  consequently  the  grantee 
might  be  jjresumed  to  have  known  thereof,  has  been  re- 
garded as  showing  that  it  was  not  intended  to  be 
covered  by  the  covenant,^'  but  these  cases  are  excep- 
tional. That  the  grantee's  knowledge  of  an  existing 
incumbrance  in  no  way  relieves  him  of  liability  under 
the  covenant  by  reason  thereof  has  been  frequently 
decided,  without  any  suggestion  that  such  knowledge 
may  be  considered  for  the  exclusive  purpose  of  show- 
ing that  the  particular  incumbrance  was  not  intended 
to  be  covered  by  the  covenant .^^ 

The  cases  are  generally  to  the  effect  that  ex- 
traneous evidence  is  not  admissible  at  law  to  show  an 
agreement  that  a  certain  incumbrance  was  not  to  in- 


116  N.  Y.  501,  15  Am.  St.  Rep. 
421,  22  N.  E.  1087;  Ake  v.  Mason, 
101  Pa.  17;  Trice  v.  Kayton,  84 
Va.  217,  10  Am.  St.  Rep.  836,  4  S. 
E.  377.  So  in  the  case  of  a  public 
levee,  Ireton  v.  Thomas,  84  Kan. 
70,  113  Pac.  306.  But  that  no- 
tice of  the  highway  has  no  such 
effect,  see  Copeland  v.  McAdory, 
100  Ala.  553,  13  So.  545;  Hub- 
bard V.  Norton,  10  Conn.  423;  De 
Long  V.  Spring  Lake  Beach  Im- 
provement Co.,  72  N.  J.  L.  125 
59  Atl.  1034.  And  see  ante,  this 
section,  notes  20,  21. 

37.  Janes  v.  Jenkins,  34  Md. 
1;  Memmert  v.  McKeen,  112 
Pa.  St.  315,  4  Atl.  542;  Kutz  v. 
McCune,  22  Wis.  628,  99  Am. 
Dec.  85. 

38.  Anniston  Lumber  &  Mfg. 
Co.  V.  Griffis,  —Ala.—,  73  So. 
418;  Eriksen  v.  Whitescarver, 
57  Colo.  409,  142  Pac.  413;  Hub- 
bard V.  Norton,  10  Conn.  422,  431; 
Godwin  v.  Maxwell,  106   Ga.   194, 


32  S.  E.  114;  Newmyer  v.  Romish, 
21  Idaho,  106  Ann.  Cas.  1913D, 
433,  120  Pac.  464;  Beach  v.  Mil- 
ler, 51  111.  206,  2  Am.  Rep.  290; 
Burk  V.  Hill,  48  Ind.  52,  17  Am. 
Rep.  731;  Yancey  v.  Tatlock,  93 
Iowa,  386,  61  N.  W.  997;  Helton 
V.  Asher,  135  Ky.  751,  123  S.  W. 
285;  Edwards  v.  Clark,  83  Mich. 
246,  10  L.  R.  A.  659,  47  N.  W. 
112;  Kellogg  v.  Malin,  50  Mo. 
496,  11  Am.  Rep.  426;  Burr  v. 
Lamaster,  30  Neb.  688,  9  L.  R.  A. 
637,  27  Am.  St.  Rep.  428,  46 
N.  W.  1015;  Demars  v.  Koehler, 
62  N.  J.  L.  203,  72  Am.  St.  Rep. 
642,  41  Atl.  720;  Huyck  v.  An- 
drews, 113  N.  Y.  81,  3  L.  R.  A. 
789,  10  Am.  St.  Rep.  432,  20  N. 
E.  581;  Long  v.  Moler,  5  Ohio  St. 
272;  Corbett  v.  Wrenn,  25  Ore. 
305,  35  Pac.  658;  Funk  v. 
Voneida,  11  Serg.  &  R.  (Pa.)  112, 
14  Am.  Dec.  617;  Grice  v.  Scar- 
borough, 2  Speers  (S.  C.)  649, 
42     Am.     Dec.     391.       Brown     v. 


§  452]  Transfer  Inter  Vivos.  1691 

volve  a  violation  of  the  covenant.^^  That  the  parties 
failed,  however,  by  mistake,  to  insert  such  agreed  ex- 
ception in  the  covenant  as  written,  has  been  regarded 
as  ground  for  reformation  in  a  court  of  equity,^''  and 
occasionally  equity  has  interposed  by  injunction,  on  the 
theory  of  fraud  or  mistake,  to  restrain  an  action  at 
law  on  the  covenant,  when  the  asserted  breach  con- 
sisted of  an  incumbrance  which  the  parties  had  agreed 
to  except  from  the  operation  of  the  covenant.^  ^  Nor, 
it  seems,  does  the  rule  excluding  evidence  of  an  ex- 
traneous agreement  excepting  an  incumbrance  from  the 
operation  of  the  covenant  necessarily  exclude  evidence 
of  an  agreement  by  the  covenantee  assuming  an  in- 
cumbrance, although  the  effect  thereof  may  be  to  show 
that  such  incumbrance  is  not  within  the  covenant. 
Oral  evidence  is  always  admissible  to  aid  in  the  inter- 
pretation of  a  writing,  and  so,  it  seems,  oral  evidence 
of  the  assumption  is  admissible  to  aid  in  the  inter- 
pretation of  the  covenant,  as  showing  that  the  covenant 
was  not  intended  to  cover  the  incumbrance  assumed. 
As  before  indicated,  the  admissibility  of  the  oral  as- 
sumption has  occasionally  been  sustained  on  the  ground 
that  it  is  introduced  merely  to  show  the  real  considera- 

Taylor,  115  Tenn.   1,   112  Am.  St.  Butler  v.  Gale,  27  Vt.  739;   O'Con- 

Rep.    811,    4   L.   R.   A.   N.    S.   309,  nor   v.    Enos,    56    Wash.    448,    105 

88  S.  W.  93:i;    O'Connor  v.   Enos,  Pac.    1039.     In   Indiana   such   evi- 

56    Wash.     448,     105     Pac.     1039;  dence  has,  however,  been  admitted. 

Levett  V.   Withrington,   Lutw.   97.  Allen   v.    Lee,    1    Ind.   58,    48   Am. 

39.     Rawle,   Covenants.   §   88,  p.  Dec.    352;    Pitman   v.    Conner,    27 

113,    note;     Holley    v.    Young,    27  Ind.  337.     So  in  Illinois.     Bidders 

Ala.   203;    Doyle  v.   Emerson,   145  v.   Riley,   22   111.    109;    and    Idaho, 

Iowa,  358,    124  N.  W.  176;    Spurr  Urich     v.     McPherson,     27    Idaho 

v.  Andrew,  6   Allen    (Mass.)    420;  319,    149    Pac.    295. 
Flynn  v.  Bourneuf,  143  Mass.  277,  40.     Rawle,  Covenants,   §  88,  p. 

58    Am.    Rep.    135,    9    N.    E.    650;  112;   Haire  v.  Baker,  5  N.  Y.  357; 

Simons    V.    Diamond    Match    Co.,  Van  Wagner  v.  Van  Nostrand,  19 

159    Mich.    241,    123    N.    W.    1132;  Iowa,  427. 

Long   V.    Moler,    5    Ohio    St.    271;  41.     Taylor    v.    Oilman,    25    Vt. 

Grice    v.    Scarborough,    2    Speers  411;   Sanders  v.  Wagner,  32  N.  J. 

(S.    C.)     649,    42    Am.    Dec.    .^1;  Eq.   506. 


1692  Real  Peopebty.  [§  453 

tion,*^  but  this  involves  a  contradiction  of  the  recital 
of  the  consideration,  for  the  purpose  of  varying  a  con- 
tractual liability,  and  the  view  above  suggested,  that 
evidence  of  the  assumption  is  admissible  as  aiding  in 
the  interpretation  of  the  covenant  would  appear  to  be 
preferable. *^^  Some  courts  have  refused  to  admit 
evidence  of  the  oral  assumption  for  the  purpose  of 
affecting  one's  liability  upon  the   covenant.'*^^ 

§  453.  Covenants  for  quiet  enjoyment  and  of  war- 
ranty. The  covenant  that  the  covenantee  shall  quietly 
enjoy  the  premises  conveyed  without  disturbance,  and 
the  covenant  to  warrant  and  defend  the  premises, 
termed,  respectively,  the  covenants  for  "quiet  enjoy- 
ment" and  "of  warranty,"  are  substantially  similar  in 
effect,  except  when  some  variation  is  introduced  by  the 
particular  language  used.^^ 

The  modern  covenant  of  warranty,  by  which  one 
covenants  that  he  will  warrant  and  defend  the  premises 
unto  the  grantee  against  all  lawful  claims  by  third 
persons,  is  entirely  different  from  the  old  common  law 
w^arranty,  and  is  merely  a  personal  covenant,  a  breach 
of  which  entitles  one  to  the  recovery  of  damages.  It 
is  not  recognized  in  England,  and  appears  to  have 
arisen  in  this  country  from  the  fact  that  the  early  con- 
veyances contained  both  personal  covenants  and  a 
clause  in  the  form  of  the  common  law  warranty,  and 
that  this  latter,  as  it  w^as  no  longer  utilized  as  a  real 
covenant,  became  incorporated  in  the  clause  containing 
the  personal  covenants,  and  so  became  itself  a  cov- 
enant of  that  character.'** 

42.     Ante,  §  438,  note  93.  43.     Rawle,    Covenants,    §    114; 

42a.     Gin   V.    Ferrin,    71    N.  H.  Copeland    v.    McAdory,    ICTO    Ala. 

421,     52     Atl.     558;     Johnston  v.  553,  13  So.  545;   MitcheU  v.  War- 

Markle    Paper    Co.,    153    Pa.    195,  ner,    5    Conn.    497;     Bostwick    v. 

25     Atl.     560,     885;     Johnson  v.  Williams,  36   111.  65,  85  Am.  Dec. 

Elmen,   94  Tex.   168,  52   L.  R.  A.  385;   Kramer  v.  Carter,  136  Mass. 

162,    86    Am.    St.    Rep.    845,    59  S.  504. 

W.   253.  44.     Rawle,    Covenants,    §§    110- 

42b.     Ante,  §  438,  note  92.  114. 


§  45o]  Transfer  Inter  Vivos.  1693 

As  in  tile  case  of  a  covenant  against  incum- 
Iji-ances/-""  the  covenantee's  knowledge  of  the  defect 
in  the  title  of  the  covenantor  at  the  time  of  the  making 
of  the  covenant  of  warranty  is  ordinarily  no  de- 
fense to  an  action  thereon,'**^  Occasionally,  however, 
his  knowledge  of  the  defect  has,  in  the  particular  case, 
and  in  view  of  the  character  of  the  defect,  been  re- 
garded as  calling  for  a  construction  of  the  covenant  as 
not  covering  the  defect.^' 

Construction    of    covenant.      A    covenant    for 

quiet  enjoyment  or  of  warranty,  like  other  covenants, 
is  to  be  construed  with  reference  to  the  interest  in  the 
land  which  the  instrument  purports  to  convey.  So  if 
it  purports  to  convey  an  estate  less  than  a  fee  simple,*^ 
or  an  undivided  interest  only,*''  the  presence  of  the 
covenant  does  not  impose  a  personal  liability  by  reason 
of  a  lack  of  title  in  excess  of  such  interest,  or  operate 
to  enlarge  the  interest  conveyed.  On  a  somewhat 
similar  theory,  if  the  conveyance  is  in  terms  of  the 
property  as  being  subject  to  a  mortgage,  an  "equity  of 
redemption,"  as  it  is  frequently  termed,  the  covenant 
is  construed  accordingly,  and  the  mortgage  is  not  re-- 
garded  as   within   the   scope   of   the   covenant. ^^ 

45.  Ante,   §    452,   note   38.  Snell    v.    Young,    3    Ired.    L.     (25 

46.  Mackintosh  v.  Stewart,  181  N.  Car.)  379;  Rawle,  Covenants, 
Ala.    328,    61    So.    956;     Flynn    v.       §   298. 

White    Breast    Coal    etc.    Co.,    72  49.     Emeric     v.     Alvarado,     90 

Iowa,  738,  32  N.  W.  471;  Cornelius  Cal.    444,    27    Pac.   356;    Coster   v. 

V.    Kinnard,    157    Ky.    50,    162    S.  Monroe    Mfg.    Co.,    2    N.    J.    Eq. 

W.  524;    Downs  v.  Nally,  161  Ky.  467;    Lamb  v.  Wakefield,   1  Sawy. 

432,     170     S.     W.     1193;     Contra.  (U.  S.)   251. 

Janes    v.    Jenkins,    34    Md.    1,    6  50.     Miller    v.     De    Graffenried, 

Am.  Rep.  300.  43  Colo.  306,  15  Ann.  Cas.  981,  95 

47.  See  McAndrews  &  Forbes  Pac.  941;  Drury  v.  Holdon,  121 
Co.  V.  Camden  Nat.  Bk.,  87  N.  111.  130;  Freeman  v.  Baxter,  55 
J.  L.  231,  94  Atl.  627;  Hymes  v.  Me.  508;  Hopper  v.  Smyser,  90 
Estey,  166  N.  Y.  505,  15  Am.  St.  Md.  363,  45  Atl.  206;  Brown  v. 
Rep.  421,  22  N.  E.  1087  (high-  South  Boston  Sav.  Bk.,  148  Mass, 
way).  300,  19  N.  E.  382;   Shafer  v.  Winc- 

48.  Adams  v.  Ross,  30  N.  J.  man,  47  Mich.  63,  10  N.  W.  104. 
L.    505,    82    Am.    Dec.    237.      See 

R.  P.— 32. 


1694 


Keal.  Property. 


[§  453 


In  a  number  of  cases,  when  the  conveyance  was  in 
terms  merely  of  the  grantor's  right  title  or  interest,  the 
covenant  has  been  construed  as  referring  merely  to  such 
right,  title  or  interest,  so  as  to  render  the  covenant 
almost  if  not  entirely  nugatory  for  the  purpose  of 
protecting  the  grantee.^^  The  mere  fact,  how^ever,  that 
a  conveyance,  which  in  terms  conveys  the  land,  recites 
an  intention  to  dispose  of  all  the  grantor's  right  title 
and  interest,  would  not  ordinarily  be  given  such  an 
effect.^2 

The  decisions  are  not  entirely  in  accord  as  to 
whether  outstanding  leases,^'  railroad  rights  of  way,^-^ 


51.  Reynolds  v.  Shaver,  59 
Ark.  299,  43  Am.  St.  Rep.  36,  27 
S.  W.  78;  McNear  v.  McComber, 
18  Iowa,  12;  BaUard  v.  Child,  46 
Me.  152;  White  &  Corhitt  v. 
Stewart,  131  Ga.  460,  62  S.  E. 
590;  Combs  v.  Combs,  130  Ky. 
827,  114  S.  W.  334;  Sweet 
V.  Brown,  12  Mete.  (Mass.) 
175,  45  Am.  Dec.  243;  Coble 
V.  Barringer,  171  N.  Car.  445, 
88  S.  E.  518;  HuU  v.  HuH,  35  W. 
Va.  155,  13  S.  E.  49,  29  Am.  St. 
Rep.  800.  But  see  Bayley  v.  McCoy, 
8  Oreg.  259;  Peck  v.  Hensley, 
20  Tex.  67. 

52.  Locke  v.  White,  89  Ind, 
492;  Hubbard  v.  Apthorp,  3  Cush. 
(Mass.)  419;  Steiner  v.  Baugh- 
man,  12  Pa.  106;  Mills  v.  Catlin, 
22    Vt.    98. 

53.  That  an  outstanding  lease 
involves  a  breach,  see  Bass  v. 
Starnes,  108  Ark.  357,  158  S.  W. 
136;  Van  Wagner  v.  Van  Nos- 
trand,  19  Iowa,  422;  Burchfield 
V.  Brinkman,  92  Kan.  377,  140 
Pac.  894;  Beutel  v.  American  Ma- 
chine Co.,  144  Ky.  57,  137  S.  W. 
799;  Fortescue  v.  Columbia  Real 
Estate    Co.,    75    N.    J.    L.    272,    67 


Atl.  1024;  Rickert  v.  Snyder,  9 
Wend.  (N.  Y.)  415;  Hampton 
Park  Terrace  v.  Sottile,  102  S.  C. 
372,  86  S.  E.  1066  (although 
known  to  the  covenantee). 

That  an  outstanding  lease  docs 
not  involve  a  breach,  see  Kellum 
v  Berkshire  Life  Ins.  Co.,  101 
Ind.  455;  Hammond  v.  Jones,  41 
Ind.  App.  32,  83  N.  E.  257; 
Knerb  v.  Beardsley,  139  Mo.  App. 
565,  123  S.  W.  545  (grantee  con- 
senting to  take  lessee  as  his 
tenant);  Baldwin  v.  Smith  (Tex. 
Civ.  App.),  119  S.  W.  Ill  (if 
known  to  covenantee).  See  Si- 
mons V.  Diamond  Match  Co.,  159 
Mich.   241,   123   N.  W.  1132. 

54.  That  a  railway  right  of 
way  involves  a  breach,  see  Flynn 
V.  White  Breast  Coal  etc.  Co.,  72 
Iowa.  738,  32  N.  W.  471;  Schwartz 
V.  Black,  131  Tenn.  360,  174  S. 
W.    1146    (nominal    damages). 

That  a  railway  right  of  way 
does  not  involve  a  breach,  see 
Van  Ness  v.  Royal  Phosphate  Co., 
60  Fla.  284,  30  L.  R.  A.  N.  S. 
833,  Ann.  Cas.  1912C,  647,  53  So. 
381;  Brown  v.  Young,  69  Iowa. 
625,    29   N.   W.    941;    Goodman  v. 


§  453:] 


Transfer  Inter  Vivos. 


1695 


and  highways,^^  are  to  be  regarded  as  witliiu  a  covenant 
of  warrant3%  a  lack  of  accord  which  also  exists,  as  we 
have  seen,  in  connection  witl?  a  covenant  against  in- 
cumbrances.^® 

A  taking  of  the  land,  or  of  an  easement  therein, 
under  the  righf  of  eminent  domain,  does  not  involve 
a  breach  of  the  covenant  of  waj-ranty  or  for  quiet 
enjoyment.''^ 

A  covenant  for  quiet  enjoyment,  when  accompany- 
ing a  lease  for  years,  is,  as  before  stated,  broken  only  if 
the  interference  with  the  enjoyment  is  by  the  lessor  or 
by  a  third  person  under  title  paramount.^*  So  when 
such  a  covenant,  or  a  covenant  of  warranty,  occurs  in 
a  conveyance  in  fee  simple,  there  can  be  no  recovery 
unless  the  disturbance  of  the  grantee's  enjoyment  is 
by  the  grantor^^  or  by  a  third  person  under  lawful 
claim  of  title.^*^  It  is  not  broken  by  a  tortious  disturb- 
ance by  a  stranger,   this  being  something  beyond   the 


Heilig,  157  N.  C.  6,  36  L.  R.  A. 
(N.  S.)  1004,  72  S.  E.  866;  Col- 
clough  V.  Briggs,  99  S.  C.  181, 
83  S.  E.  35;  Milwaukee  etc.  R. 
Co.  V.  Strange,  63  Wis.  178,  23  N. 
W.    432. 

55.  That  a  highway  involves 
a  breach,  see  Copeland  v.  Mc- 
Adory,  100  Ala.  553,  13  So.  545 
(though  known  to  covenantee); 
Louisville  Public  Warehouse  Co. 
V.  James,  21  Ky.  L.  Rep.  1726, 
56  S.  W.  19  (sevible);  Haynes 
V.  Young,  36  Me.  557. 

That  a  highway  does  not  in- 
volve a  breach,  see  Craus  v. 
Durdall,  154  Iowa,  468,  134  N.  W. 
1086;  Hymes  v.  Estey,  116  N. 
Y.  505,  15  Am.  St.  Rep.  421,  22 
N.  E.  108  (If  actual  or  construc- 
tive notice  to  covenantee) ;  Butte 
V.  Riffe,  78  Ky.  352  (ditto);  Ake 
v.  Mason,  101  Pa.  17  (ditto).  A 
like   view    has    been    taken    of    a 


public    levee.     Ireton   v.   Thomas, 

84  Kan.  70,  113  Pac.  306,  and  a 
public  wharf,  Burke  v.  Trabue's 
ExT,  137  Ky.  580,  126  S.  W.  125. 

56.  Ante,  §  452,  notes  20-23,  25. 

57.  Rawle,  Covenants,  §  129; 
Frost  V.  Earnest,  4  Whart.  (Pa.) 
86;  Brimmer  v.  City  of  Boston, 
102  Mass.  19;  Cooper  v.  Blood- 
good,  32  N.  J.  Eq.  209;  Steven- 
son V.  Loehr,  57  111.  509,  11  Am, 
Rep.  36;  Folts  v.  Huntley,  7 
Wend.    (N.    Y.)    210. 

58.  Ante,  §  49    (b). 

59.  See  post,  this  section, 
notes  63-67. 

60.  Davis  v.  Smith,  36  111.  35, 

85  Am.  Dec.  385;  Bostwick  v. 
Williams,  36  111..  35,  85  Am.  Dec. 
385;  Burrus  v.  Wilkinson,  31 
Miss.  537;  Kent  v.  Welch,  7 
Johns.  (N.  Y.)  258,  5  Am.  Dec. 
266;  Johnson  v.  Nyce's  Ex'rs,  17 
Ohio    66,    49    Am.    Dec.    444;    Mc- 


1696  Real  Peoperty.  [§  453 

control  of  the  grantor,  and  for  which  the  grantee  has 
his  remedy  against  the  wrongdoer.**^ 

The  covenant  for  quiet  enjoyment  may  be  general 
in  terms,  to  the  effect  that  the  grantee  shall  quietly  enjoy 
the  premises,  or  it  may  be  expressly  restricted  to  their 
enjoyment  free  from  interference  by  reason  of  the 
acts  of  the  grantor  and  of  those  persons  who  claim 
through  or  under  him,  it  being  then  referred  to  as  a 
'' qualified""  or  "limited"  covenant.^-  So  the  covenant 
of  warranty  may  extend  to  the  acts  and  claims  of  all 
persons  whomsoever  (general  warranty),  or  it  may 
extend  merely  to  the  acts  and  claims  of  the  grantor 
and  those  claiming  under  him  (special  warranty).  The 
following  remarks  are  based  upon  the  assumption  that, 
in  the  particular  case,  the  covenant  is  general  in  form. 

Breach  by  act  of  covenantor.  The  question  of 

the  character  of  the  act  which,  when  committed  by  the 
covenantor  himself,  will  constitute  a  breach  of  the 
covenant  for  quiet  enjoyment,  is  presumably  to  be 
determined  with  reference  to  the  same  considerations 
as  control  in  the  case  of  a  similar  covenant  in  a  lease, 
which  latter  has  frequently  been  the  subject  of  de- 
cision.^^^  While  it  has  been  said  that  the  lessor's  act 
must,  for   this   purpose,   amount   to   an   eviction,^^   and 

Grew  V.  Harmon,  164  Pa.  St.  115,  the   acts   of  a  certain  person  ap- 

30  Atl.  265,  268;    Knapp  v.  Town  plies   to   his   tortious,   as  weU   as 

of  Marlboro,  34  Vt.  235.  his    rightful,   acts.     Rawle,    Cove- 

61.     Hayes        v.         Bickerstaff,  nants,    §    128;     Foster    v.    Mapes, 

Vaughan,   118;    Noonan  v.   Lee,   2  Cro.    Eliz.    212. 

Black     (U.    S.)    499;    Chestnut   v.  62.     As   to    the   construction    of 

Tyson,    105   Ala.   149,   53   Am.   St.  such  words  of  qualification,  see  1 

Rep.   101,    16   So.   723;    Hoppes  v.  Tiffany,    Landlord    &    Tenant,    p. 

Cheek,    21    Ark.    585;    Playter    v.  523;    Rawle,    Covenants,    ch.    6. 

Cunningham,   21   Cal.   229;    Barry  63.     See  1   Tiffany,  Landlord  & 

V.  Guild,  126  111.  439,  2  L.  R.  A.  Tenant,  §  79d. 

334,    18    N.    E.    759;     Gardner    v.  64.     Rawle,    Covenants,    §    128; 

Keteltas,     3    Hill     (N.    Y.)     330;  Sedgwick  v.  Hollenback,  7  Johns. 

Poley  V.  Lacert,  35  Oreg.  166,  58  (N.  Y.)    376;    Akerly  v.  Vilas,   23 

Pac.  37.     But  a  covenant  against  Wis.  207,  99  Am.  Dec.  165. 


§  453]  Transfer  Inter  Vivos.  1697 

that  his  wrongful  entry  on  the  premises  without  claim- 
ing title,  or  without  doing  such  acts  as  amount  to 
an  assertion  of  title,  is  insufiScient,  because  constituting 
merely  a  trespass  not  amounting  to  an  eviction,*^ ^  the 
trend  of  the  later  authorities  is  apparently  to  the  effect 
that  any  intentional  interference  by  the  covenantor  with 
the  covenantee's  enjoyment  and  use  of  the  premises 
constitutes  a  breach  of  the  covenant,  regardless  of 
whether  it  results  in  an  eviction.*^*^ 

It  has  occasionally  been  asserted  or  assumed  that 
a  grantor  may  be  liable,  on  his  covenant  of  warranty 
in  a  conveyance  by  him  in  fee  simple,  by  reason  of 
the  fact  that  he  makes  a  subsequent  conveyance  to 
another,  who  takes  without  notice  and  records  his  con- 
veyance before  the  prior  conveyance  is  recorded,  with 
the  result  that  nothing  passes  by  such  prior  convey- 
ance.^' This  view  is  to  be  regarded  as  based,  it  would 
seem,  on  the  theory  that  the  entry  by  the  grantee  in 
the  second  conveyance  is  to  be  considered  as  in  be- 
half of  or  by  direction  of  the  common  grantor,  who  is 
thus  in  the  position  of  one  who,  after  conveying  with 
warranty,  himself  evicts  his  covenantee. 

Breach  by  reason  of  paramount  claim.  In  order 

that  there  be  a  breach  of  the  covenant  of  warranty  or 
of  that  for  quiet  enjoyment  by  reason  of  a  paramount 

65.  Crosse  v.  Young,  2  Show.  (Pa.)  22  Contra,  Wade  v.  Com- 
425;  Avery  v.  Dougherty,  102  Ind.  stock,  11  Ohio  St.  71  See,  also, 
443,  52  Am.  Rep.  680,  2  N.  E.  as  opposed  to  the  view  of  these 
123.  See  1  Tiffany,  Landlord  &  cases,  dictum,  of  Sharswood,  J.,  in 
Ten.,  p.   528.  Scott    v.    Scott,    70    Pa.    244,    and 

66.  1  Tiffany,  Landlord  &  Ten.  Rawle,   Covenants,   §   128. 

p.    529.  The   covenantor   has   even   been 

67.  Madden  v.  Caldwell  Land  held  liable  on  account  of  an  en- 
Co.,  16  Idaho,  59,  21  L.  R.  A.  N.  try  upon  the  covenantee  made 
e.  332,  100  Pac.  358;  Curtis  v.  by  the  grantee  in  a  prior  con- 
Deering,  12  Me.  499;  Williamson  veyance  executed  by  the  cove- 
V.  Williamson,  71  Me.  442;  Eaton  nantor,  though  by  reason  of  the 
V.  Hopkins,  71  Fla.  615,  71  So.  prior  record  of  the  later  con- 
922;  Jones  v.  Warner,  81  111.  veyance  the  entry  was  wrongful. 
343;  Lukens  v.  Nicholson,  4  Phila.  Thomas   v.    West   &   Wheeler,    C4 


1698 


Real  Propeety. 


[§  453 


title  in  another,  an  eviction  of  the  covenantee  by  such 
other  is  ordinarily  necessary .^^  Consequently  the  mere 
existence  of  a  lien  on  the  land,  such  as  a  mortgage, 
involves  no  breach  of  the  covenant,*^^  though  a  breach 
may  occur  as  a  result  of  the  enforcement  of  the  lien, 
followed  by  an  eviction  by  the  person  to  whom  the 
ownership  of  the  land  passes  as  a  result  of  such  en- 
forcement."^" And  the  existence  of  an  inchoate  dower 
right  does  not  involve  a  breach, "^^  though  a  breach  may 
result    from    the    enforcement    of    a    right    of    dower 


Wash.  344,  116  Pac.  1076,  disa/p- 
proving  Lamb  v.  Willis,  125  App. 
Div.   183,  109  N.  Y.   Supp.  75. 

68.  Rawle,  Covenants,  §  131; 
Gulf  Coal  &  Coke  Co.  v.  Mus- 
grove,  195  Ala.  219,  70  So.  179; 
McCormick  v.  Marcy,  165  Cal. 
386,  132  Pac.  449;  Brooks  v. 
Winkles,  139  Ga.  732,  78  S.  E. 
129;  Grant  v.  McArthur's  Ex'r, 
153  Ky.  356,  155  S.  W.  732; 
Boulden  v.  Wood,  96  Md.  332,  53 
Atl.  911;  Coopwood  v.  McCand- 
less,  99  Miss.  364,  54  So.  1007; 
Aiple-Hemmelman  Real  Estate  Co. 
V.  Spelbrink,  211  Mo.  671,  111  S. 
W.  480;  Troxell  v.  Johnson,  52 
Neb.  46,  71  N.  W.  968;  Smith  v. 
Wahl,  88  N.  J.  623,  97  Atl.  261; 
Scriver  v.  Smith,  100  N.  Y.  471, 
53  Am.  Rep.  224,  3  N.  E.  675; 
Werner  v.  Wheeler,  142  N.  Y. 
App.  Div.  358,  127  N.  Y.  Supp. 
158;  Richmond  Cedar  Works  v. 
J.  L.  Roper  Lumber  Co.,  161  N. 
C.  603,  77  S.  E.  770;  Rancho 
Bonito  Land  &  Live  Stock  Co.  v. 
North.  92  Tex.  72,  45  S.  W.  994; 
Lennig  v.  Harrisonburg  Land  & 
Improvement  Co.,  107  Va.  458, 
59  S.  E.  400;  McKinley  Land  Co. 
V.  Maynor,  76  W.  Va.  156,  85  S.  E. 
79;  Durbin  v.  Shenners,  133  Wis, 
134,  113  N.  W.  421. 


69.  King  V.  Killbride,  58  Conn. 
109;  Clark  v.  Lineberger,  44  Ind. 
223;  Kimberlin  v.  Templeton,  55 
Ind.  App.  155,  102  N.  E.  160; 
Foster  v.  Woodward,  141  Mass. 
160,  6  N.  E.  853;  Koenig  v. 
Branson,  73  Mo.  634;  Marbury 
V.  Thornton,  82  Va.  702,  1  S.  E. 
909;  Leddy  v.  Enos,  6  Wash.  247, 
33  Pac.  508,  34  Pac.  665;  Durbin 
V.  Shenners,  133  Wis.  134,  131 
N.  W.  421. 

70.  Collier  v.  Cowger,  52  Ark. 
322,  6  L.  R.  A.  107,  12  S.  W. 
702;  King  v.  Kilbride,  58  Conn. 
109;  Clark  v.  Lineberger,  44  Ind. 
223;  Congregation  of  Sisters  of 
Perpetual  Adoration  v.  Jane,  110 
Miss.  612,  70  So.  818;  Cheney  v. 
Straube,  35  Neb.  521,  53  N.  W. 
479;  Stewart  v.  Drake,  9  N.  J. 
L.  139;  Jenks  v.  Quinn,  137  N. 
Y.  223,  33  N.  E.  376;  Smith  v. 
Dixon,  27  Ohio  St.  471;  Williams 
V.  O'Donnell,  225  Pa.  321,  74  Atl. 
205;  Harr  v.  Shaffer,  52  W.  Va. 
207,  43  S.  E.  89;  Jackson  v. 
McAuley,  13  Wash.  298,  43  Pac. 
41. 

71.  Tierney  v.  Whiting,  2  Colo. 
620;  Bostwick  v.  Williams,  36 
HI.  65,  85  Am.  Dec.  385;  Aiple- 
Hemmelman    Real    Estate    Co.    v. 


§  453]  Transfer  Inter  Vivos.  1699 

consummate.'-  There  are,  however,  some  exceptions 
to  the  requirement  of  an  eviction.  Of  these  the  most 
important  is  the  case  of  a  covenantee  who  is  unable, 
upon  receiving  the  conversance,  to  obtain  possession  of 
the  land,  owing  to  the  fact  that  another  person,  having 
a  superior  title  thereto,  is  in  possession,  it  being 
considered  unnecessary,  in  such  a  case,  that  the  cov- 
enantee should  be  compelled  to  take  forcible  possession 
in  order  that  he  himself  may  be  ejected,  or  to  bring 
a  suit  for  the  land,  which  would  necessarily  result  ad- 
versely to  him,'^  and  a  like  doctrine  has  been  applied 
when  the  paramount  or\Tier,  though  not  in  possession 
at  the  time  of  the  conveyance,  took  possession  before 
the  covenantee  entered  and  in  that  wav  excluded  the 
latter.*^^ 

In  the  case  of  absolutely  unoccupied  land,  the 
mere  assertion  of  a  paramount  title,  without  the 
taking  of  actual  possession  by  the  holder  thereof, 
might  be  regarded  as  so  indicative  of  an  intention  to 
exclude  the  covenantee  as  to  involve  a  breach  of  the 
covenant.'^     Another  case  of  a  breach  of  the  covenant 

Spelbrink,    211    Mo.    671,    111    S.  N.    W.    952;     Shattuck    v.    Lamb, 

W.   480.  65    N.    Y.    499,   22    Am.    Rep.    656; 

72.  Bostwick  v.  Williams,  36  Hunt  v.  Hay,  214  N  Y..  578.  108 
ni.  65,  85  Am.  Dec.  385;  Davis  N.  E.  851;  Fishel  v.  Browning, 
V.  Logan,  5  B.  Mon.  (Ky.)  341;  145  N.  C.  71,  58  S.  E.  759;  Mc- 
Maguire  v.  Riggin,  44  Mo.  512;  Hargue  v.  Calchina,  78  Ore.  326, 
McAlpin  V.  WoodruftM  Disn.  339, 12  153  Pac.  99;  New  York  &  Cleve- 
Ohio  Dec.  658;  Lewis  v.  Lewis,  land  Gas  Co.  v.  Graham,  226  Pa. 
5  Rich.  L.  (S.  C.)  12;  Welsh  v.  348,  75  Atl.  657;  Lennig  v.  Har- 
Kibler,  5  S.  C.  405.  risonburg    Land    &    Improvement 

73.  Cloake  v.  Hooper,  Freem.  Co.,  107  Va.  458,  59  S.  E.  400; 
122;  Peters  v.  Bowman,  98  U.  McConaughey  v.  Bennett's  Ex'rs, 
S.  56,  25  L.  Ed.  91;  Banks  v.  50  W.  Va.  172,  40  S.  E.  540. 
Whitehead,  7  Ala.  83;  Moore  v.  74.  St.  .lohn  v.  Palmer,  5  Hill 
Vail,  17  111.  185;  Cummins  v.  (N.  Y.)  599;  Winslow  v.  McCall, 
Kennedy,  3  Litt.  (Ky.)  118,  14  ^2  Barb.  (N.  Y.)  541;  Hodges  v. 
Am.  Dec.  45;  Witty  v.  Hightower.  Latham,  98  N.  C.  239,  2  Am.  St. 
12    Smedes    &    M.     (Miss.)     478:  Rep.  333,  3  S.  E.  495. 

Murphy    v.    Price,    48    Mo.    247;  75.     See    Rawle,    Covenants,     § 

Heyn  v.   Ohman,   42   Neb.   693,   60      140;   Jennings  v.  Kiernan,  35  Ore. 


1700 


Eeal.  Property. 


[§  453 


without  an  eviction  may  occur  in  the  case  of  an  ease- 
ment outstanding  in  a  third  person.'*^  The  exercise 
of  such  an  easement,'^^  and  occasionally,  x>€rhaps,  the 
mere  assertion  of  the  right  to  exercise  it,'^^  has  been 
regarded  as  involving  a  breach  of  the  covenant.  In 
a  few  cases,  where  the  conveyance  of  land  was  regarded, 
by  reason  of  the  use  of  the  expression  ''appurte- 
nances," or  otherwise,  as  intended  to  include  an  ease- 
ment in  the  adjoining  land,  a  failure  of  title  to  such 
easement  has  been  held  to  involve  a  breach  of  the 
covenant."^ 

In  one   state  it  has  been  said  that  an  eviction  is 
unnecessarv   if   the   covenantor   is   insolvent  or   a  non 


349,  55  Pac.  443,  56  Pac.  72.  In  Sel- 
don  V.  Dudley  E.  Jones  Co.,  74 
Ark.  348,  85  S.  W.  778,  it  is  even 
asserted  that  in  the  case  of  wild 
a,nd  unimproved  land,  the  mere 
existence  of  a  paramount  title  in- 
volves a  breach. 

76.  Occasionally  it  has  been 
decided,  apparently,  that  the 
existence  of  an  easement  does 
not  involve  a  breach  of  the 
covenant.  Diseker  v.  Eau  Claire 
Land  &  Imp.  Co.,  86  S.  C. 
281,  68  S.  E.  529;  Cummings  v. 
Hamrick,  74  W.  Va.  406,  82  S.  E. 
44. 

77.  Flynn  v.  White  Breast  Coal 
&  Min.  Co.,  72  Iowa,  738,  32 
N.  W.  471;  Lamb  v.  Danforth,  59 
Me.  324,  8  Am.  Rep.  426;  Harring- 
ton V.  Bean,  89  Me.  470,  36  Atl. 
986;  Smith  v.  Richards,  155 
Mass.  79,  28  N.  E.  1132;  Scriver 
V.  Smith,  100  N.  Y.  471,  53  Am. 
Rep.  224,  3  N.  E.  675;  Rea  v. 
Minkler,  5  Lans.  (N.  Y.)  196: 
Wilson  V.  Cochran,  46  Pa.  229. 
The  case  of  Mitchell  v.  Warner, 
5    Conn.    497,    in    which    it    was 


decided  that  the  exercise  of  a 
right  to  divert  water  from  a 
stream  on  the  land  did  not  in- 
volve a  breach  of  the  covenant, 
has  been  criticized.  See  Wilson 
V.  Cochran,  46  Pa.  233;  Rawle, 
Covenants,   §   152   note. 

78.  Helton  v.  Asher,  135  Ky. 
751,  123  S.  W.  285;  Kramer  v. 
Carter,   136   Mass.   504. 

The  successful  assertion  of  the 
easement  by  suit  has  been  re- 
garded as  Involving  a  breach 
of  the  covenant.  Ailing  v.  Bur- 
lock,  46  Conn.  504;  Ensign  v. 
Colt,  75  Conn.  111.  52  Atl.  829. 
946;  Butt  v.  Riffe,  78  Ky.  352: 
Hymes  v.  Estey,  116  N.  Y.  501, 
15  Am.  St.  Rep.  421,  22  N.  E. 
1087. 

79.  Downs  v.  Nally,  161  Ky. 
432,  170  S.  W.  1193;  Richstein  v. 
Welch,  197  Mass.  224,  83  N.  E. 
417;  Scheible  v.  Slagle.  89  Ind. 
323;  Bowling  v.  Burton,  101  N. 
C.  176,  2  L.  R.  A.  285,  7  S.  E. 
701;  Peters  v.  Grubb,  21  Pa. 
455;  Adams  v.  Conover,  87  N.  Y. 
422. 


§  453:] 


Transfer  Inter  Vivos. 


1701 


resident^*^  or  is  about  to  remove  his  property  from  the 
state. ^^  An  eviction  is  obviously  not  necessary  in 
any  state  in  which  the  covenant  of  warranty  is  re- 
garded as  including  that  against  incumbrances. ^^ 

To  constitute  an  actual  eviction  under  paramount 
title  the  dispossession  need  not  be  under  legal  proc- 
ess,*^ nor  need  there  be  any  judicial  decision  in  favor 
of  the  holder  of  the  paramount  title, ^^  it  being  suf- 
ficient that  the  claim  is  actually  asserted,*^  that  it  is 


80.  Walker  v.  Robinson,  163 
Ky.   618,   174   S.    VW.   503. 

81.  ,  Knight's  Adm'r  v.  Schroad- 
er,    148   Ky.    610.    147    S.    W.    378. 

82.  Moore  v.  Lanham.  3  Hill 
(S.  C.)  304;  Jeter  V.  Glenn,  9  Rich. 
L.  (S.  C.)  374;  Van  Wagner  v.  Van 
Nostrand,  19  Iowa,  422;  Bullard 
V.  Hopkins,  128  Iowa,  703.  105 
N.  W.  197  (semble) ;  Taylor  v. 
Allen,  60  Pa.  Super  Ct.  503. 

83.  Rawle,  Covenants.  §  132: 
Foster  v.  Pierson,  4  Term  R.  617: 
McGary  v.  Hastings,  39  Cal.  360, 
2  Am.  Rep  456;  Green  v.  Irv- 
ing, 54  Miss.  450.  28  Am.  Rep. 
360;  Greenvault  v.  Davis,  4  Hill 
(N.  Y.)  645;  Hodges  v.  Latham, 
98  N.  C.  239,  2  Am.  St.  Rep. 
333,   3    S.   E.   495. 

84.  Dugger  v.  Oglesby,  99  111. 
405;  Mason  v.  Cooksey,  51  Ind. 
519;  Hamilton  v.  Cutts,  4  Mass. 
350,  3  Am.  Dec.  222. 

85.  There  can  be  no  eviction 
under  paramount  title  unless 
such  title  is  actually  asserted, 
and  consequently,  at  least  In  the 
ordinary  case,  no  breach  of  the 
covenant  occurs  if  the  covenantee 
yields  possession  to  the  holder  of 
a  paramount  title,  who  has  not 
asserted  his  title.  Hester  v. 
Hunnicutt,  104  Ala.  282,  16  So. 
162;    Moore   v.   Vail,    17    111.    185; 


Axtel  V.  Chase,  83  Ind.  546; 
Green  v.  Irving,  54  Miss.  450,  28 
Am.  Rep.  360;  Ogden  v.  Ball, 
40  Minn.  94.  41  N.  W.  453;  Mor- 
gan V.  Hannibal  R.  Co.,  63  Mo. 
129;  Githens  v.  Barnhlll,— (Mo. 
App.)— 184  S.  W.  145;  McGrew  v. 
Harmon,  164  Pa.  St.  115,  30  Atl. 
265,  268;  Leddy  v.  Enos,  6  Wash. 
247,   33   Pac.    508,    34   Pac.   665. 

To  the  rule  requiring  an  as- 
sertion of  the  adverse  claim  an 
exception  has  been  recognized 
when  the  paramount  title  was  in 
the  United  States.  Dillahunty  v. 
Little  Rock  &  Ft.  S.  Ry.  Co.,  59 
Ark.  629,  27  S.  W.  1002,  28  S. 
W.  657;  Crawford  County  Bank 
V.  Baker,  95  Ark.  438,  130  S.  W. 
556;  McGary  v.  Hastings,  39  Cal. 
367,  2  Am.  Rep.  456;  Harrington 
V.  Clark,  56  Kan.  644,  44  Pac. 
624;  Pevey  v.  Jones,  71  Miss.  627, 
42  Am.  St.  Rep.  486,  16  So. 
252. 

The  cancellation  of  an  entry 
or  patent  by  the  land  office  has 
been  regarded  as  a  sufficient  as- 
sertion of  the  government  title. 
Butler  V.  Watts,  13  La.  Ann.  390; 
Efta  V.  Swanson,  115  Minn.  373, 
132  N.  W.  335,  Giddings  v.  Hot- 
ter, 19  Mont.  263,  48  Pac.  8; 
Jennings  v.  Kiernan,  35  Ore.  349. 
55    Pac.    443,     56    Pac.    72     (suit 


1702 


Real,  Peoperty. 


[§  453 


valid,^^  and  that  the  covenantee  yields  thereto.^"^ 

A  constructive  eviction,  as  distin^ished  from  an 
actual  one,  involving  a  breach  of  the  covenant,  occurs 
when,  upon  the  assertion  of  a  paramount  title,  the 
covenantee,  instead  of  yielding  possession  to  the  hos- 
tile claimant,  buys  in  such  title,  or  takes  a  lease  from 
the  holder  thereof.*^  The  covenantee  is,  however,  under 
no  obligation  to  the  covenantor  thus  to  arrive  at  a 
settlement  with  the  paramount  owner.^'^  Somewhat 
similar   to   the  case   of  a   purchase   of   the   paramount 


to  annul  patent).  And  dealing 
with  the  land  as  state  land  has 
been  regarded  as  sufficient  asser- 
tion of  a  paramount  title  in  the 
state.  Green  v.  Irving,  54  Miss. 
450;  Brown  v.  Allen,  57  Hun 
(N.   Y.)    219,   10   N.   Y.   Supp.   714. 

86.  See  Rawle,  Covenants  § 
136,  and  cases  cited  ante,  this 
section,    note    60. 

87.  Gunter  v.  Williams,  40  Ala. 
561;  Clements  v.  Collins,  59  Ga. 
124;  Axtel  v.  Chase,  83  Ind. 
546;  Hamilton  v.  Cutts,  4  Mass. 
350,  3  Am.  Dec.  222;  Kramer  v. 
Carter,  136  Mass.  504;  AUis  v. 
Nininger,  25  Minn.  525;  Green 
V.  Irving,  54  Miss.  450,  28  Am. 
Rep.  337;  Lambert  v.  Estes,  99 
Mo.  604,  13  S.  W.  284;  Cheney 
V.  Straube,  35  Neb.  521,  53  N.  W. 
479;  Cornish  v.  Capron,  136  N. 
Y.  232,  32  N.  E.  773;  Jenks  v. 
Quinn,  137  N.  Y.  223,  33  N.  E. 
376;  Brown  v.  Corson,  16  Ore. 
388,  19  Pac.  66,  21  Pac.  47; 
Wilson  V.  Cochran,  46  Pa.  St. 
229;  Hebert  v.  Handy,  29  R.  I. 
543,    72    Atl.    1102. 

88.  Dillahunty  v.  Little  Rock 
&  Ft.  S.  Ry.  Co.,  59  Ark.  699,  27 
S.  W.  1002,  28  S.  W.  657;  McGary 
V.  Hastings,  39  Cal.  360,  2  Am. 
Rep.    456;    Hayden    v.    Patter.son, 


39  Colo.  15,  88  Pac.  437;  Joyner 
V.  Smith,  132  Ga.  779,  65  S.  E. 
68;  McConnell  v.  Downs,  48  111. 
271;  Beasley  v.  Phillips,  20  Ind. 
App.  182;  Smith  v.  Keeley,  146 
Iowa,  660,  125  N.  W.  669;  Sprague 
V.  Baker,  17  Mass.  590;  Brooks 
V.  Mohl,  104  Minn.  404,  116  N. 
W.  931;  Loomis  v.  Bedel,  11  N. 
H.  74;  Hodges  v.  Latham,  98 
N.  C.  239,  2  Am.  St.  Rep.  333,  3 
S.  E.  495;  Pee  Dee  Naval  Stores 
Co.  V.  Hamer,  92  S.  C.  423,  75 
S.  E.  695;  Morrow  v.  Baird,  114 
Tenn.  552,  86  S.  W.  1079;  Clark 
V.  Mumford,  62  Tex.  531;  Morgan 
V.  Haley,  107  Va.  331,  13  L.  R.  A. 
(N.  S.)  732,  122  Am.  St.  Rep. 
846,  13  Ann.  Cas.  204,  58  S.  E. 
564;  See  Tucker  v.  Cooney,  34 
Hun.  (N.  Y.)  227,  100  N.  Y. 
719;  Stewart  v.  Drake,  9  N.  J. 
L.  139.  In  one  or  two  states  a . 
different  view  has  been  taken. 
Huff  V.  Cumberland  Valley  Land 
Co.  17  Ky.  L.  Rep.  213,  30  S.  W. 
660;  Dyer  v.  Britton,  53  Miss. 
270.  Compare  Swinney  v.  Cock- 
rell,  86  Miss.  318,  38  So.  353. 

89.  Brawley  v.  Copelin.  106 
Ark.  256,  153  S.  W.  101;  Miller  v. 
Halsey,  14  N.  J.  L.  48;  Olmstead 
V.  Rawson,  188  N.  Y.  517,  81  N. 
E.   456;    Parker   v.   Crainton,   143 


§  453r] 


Transfer  Inter  Vivos. 


title  by  the  covenantee  is  that  of  the  extinguishment 
by  him  of  a  paramount  lien,^^  or  the  purchase  by  him 
of   the   property   upon   a    sale   under   such   lien.^^ 

Occasionally  a  mere  adjudication  that  another's 
title  is  superior  to  that  of  the  covenantee  has  been 
regarded  as  involving  a  breach  of  the  covenant  of 
warranty,  without  reference  to  whether  the  covenantee 
still  retains  the  possession.^^  Such  a  view  appears  to 
involve,  to  some  extent,  a  departure  from  the  require- 
ment of  eviction  in  order  to  effect  a  breach  of  the 
covenant,^^  and  might  well,  perhaps,  be  confined  to 
cases  in  which  the  land,  at  the  time  of  the  adjudication, 
is  vacant  and  unoccupied.^^  Occasionally  there  has 
been  considered  to  be  a  breach  of  the  covenant  by 
reason   of   an   outstanding  legal   title    when    the    cove- 


Ga.    421,    85    S.    E.    338;     Rawle. 
Covenants  §,  181. 

90.  Bemis  v.  Smith,  10  Mete. 
(Mass.)  194;  Estabrook  v.  Smith, 
6  Gray  (Mass.)  572,  66  Am.  Dec. 
443;  Jackson  v.  Hanna,  8  Jones 
Law,  (53  N.  C.)  188;  Welsh  v. 
Kibler,  5  S.  C.  405;  Kenney  v. 
Norton,  10  Heisk.  (Tenn.)  384; 
McCrillis  v.  Thomas  110  Mo.  App. 
699,  85  S.  W.  673. 

91.  Talbott  V.  Donaldson,  71 
Kan.  483,  80  Pac.  981;  Whitney 
V.  Dinsmore,  6  Cush.  (Mass.) 
124;  Hill  V.  Bacon,  110  Mass.  387; 
Cowdrey  v.  Colt,  44  N.  Y.  382,  4 
Am.  Rep.  690;  Brown  v.  Dins- 
more.   12  Pa.  372. 

It  has  been  held  that  the  cove- 
nantee may  pay  the  taxes  on  the 
property  when  due,  and  assert  a 
breach  of  the  covenant.  Swinney 
V.  Cockrell.  86  Miss.  318,  38  So. 
353.  But  this  is  open  to  question 
so  long  as  there  has  been  no 
claim  made  against  the  property 
on  account  of  the  taxes.  Leddy 
V.    Enos,    6    Wash.    247,    33    Pac 


508,    34   Pac.   665. 

92.  Cox  V.  Bradford,  101  Ark. 
302,  142  S.  W.  172;  Hayden  v. 
Patterson,  39  Colo.  15,  88  Pac. 
437;  Wilber  v.  Buchanan,  85  Ind. 
42;  Wright  v.  Nipple,  92  Ind.  310; 
Sarrls  v.  Beckman,  55  Ind.  App. 
638,  104  N.  E.  598;  Waggener  v. 
Howsley's  Adm'r,  64  Ky.  113,  175 
S.  W.  4;  Hubbard  v.  Stanaford, 
30  Ky.  L.  Rep.  1044,  100  S.  W. 
232;  Boyd  v.  Bartlett,  36  Vt.  9; 
Black  V.  Barto,  65  Wash.  502, 
Ann.  Cas.  1913B,  846,  118  Pac. 
Pac.    623. 

93.  That  a  mere  adjudication 
is  not  sufficient,  see  Wagner  v. 
Finnegan,  54  Minn.  251,  55  N. 
W.  1129;  Hoy  v.  Taliaferro,  8 
Sm.  &  M.  (Miss.)  727;  Real  v. 
Hollister,  20  Neb.  112,  29  N.  W. 
189;  Kerr  v.  Shaw,  13  Johns.  (N. 
Y.)  2."?6;  Ravenel  v.  Ingram,  131 
N.  C.  549.  42  S.  E.  967;  Paul  v. 
Witman,  3  Watts  &  S.    (Pa.)    407. 

94.  See  Wagner  v.  Finnegan, 
54  Minn.  25.  55  N.  W.  1129;  St. 
.John    v.    Palmer,    5    Hill    (N.    Y.) 


1704 


Keal.  Pkoperty. 


[§  453 


iiantee  has  obtained  a  decree  in  equity  cancelling  such 
title  in  his  favor.^^ 

Proof    of    paramount    title.    One    alleging    a 


breach  of  the  covenant  by  reason  of  an  eviction  or  as- 
sertion of  claim  by  a  third  person  has  the  burden  of 
showing  that  such  person  had  a  paramount  title. ^" 
But  ''it  has  come  to  be  well  settled  in  most  if  not  all 
of  the  United  States  that,  in  general,  upon  suit  being 
brought  upon  a  paramount  claim  against  one  who  is 
entitled  to  the  benefit  of  any  of  the  covenants  for  title, 
and  more  particularly  it  would  seem  of  the  covenant  of 
warranty,  he  can,  by  giving  proper  notice  of  the  action 
to  the  party  bound  by  the  covenants  and  requiring  him 
to  defend  it,  relieve  himself  from  the  burden  of  being 
obliged  afterward  to  prove,  in  the  action  on  the  cove- 
nants, the  validity  of  the  title  of  the  adverse  claim- 
ant, "^"^   and   occasionally  a  judgment  thus   recognizing 


599,   and   ante,   this   section,   note 
75. 

95.  Smith  v.  Keeley,  146  Iowa, 
660,  136  N.  W.  669;  Mackenzie  v. 
Clement,— (Mo.  App)— 129  S.  W. 
730;  Lane  v.  Fury,  31  Ohio  St. 
574. 

96.  Copeland  v.  McAdory,  100 
Ala.  553,  13  So.  545;  Tuggle  v. 
Hamilton,  100  Ga.  292,  27  S.  E. 
987;  Moore  v.  Vail,  17  111.  190; 
Crance  v.  Collenbaugh,  47  Ind. 
256;  George  v.  Putney,  4  Gush. 
(Mass.)  355,  50  Am.  Dec.  788; 
Lambert  v.  Estes,  99  Mo.  604,  13 
S.  W.  284;  Snyder  v.  Jennings, 
15  Neb.  372,  19  N.  W.  501; 
Stone  V.  Hooker,  9  Cow.  (N. 
Y.)  157;  Cobb  v.  Klosterman,  58 
Ore.  211,  114  Pac.  96;  Callis  v. 
Cogbill,  9  Lea  (Tenn.)  137;  West- 
rope  V.  Chambers,  51  Tex.  178; 
McKillop  V.  Post,  82  Vt.  403,  74 
Atl.     78. 

The     burden     of     showing     the 


validity  of  the  asserted  para- 
mount title  Is  upon  the  cove- 
nantee who  yields  thereto.  Ever- 
sole  V.  Early,  80  Iowa,  601,  44 
N.  W.  897;  Rawle  Covenants  §, 
136;  Tiffany,  Landlord  &  Tenant 
p.   1299. 

97.  Rawle,  Covenants  §  117. 
See  Carpenter  v.  Carpenter,  88 
Ark.  169,  113  S.  W.  1032;  Mc- 
Cormick  v.  Marcy,  165  Cal.  386, 
132  Pac.  449;  Taylor  v.  Allen,  131 
Ga.  416,  62  S.  E.  291;  Harding 
V.  Sucher,  261  111.  284,  103  N.  E. 
1019;  Olmstead  v.  Rawson,  188 
N.  Y.  517,  81  N.  E.  456;Stone- 
braker  v.  Ault,— Okla.— 158  Pac. 
570;  Samson  v.  Zimmerman,  73 
Kan.  654,  85  Pac.  757;  Elliott  v. 
Saufley,  89  Ky.  52,  11  S.  W.  200; 
Parnsworth  v.  Kimball,  112  Me. 
238,  91  Atl.  954;  Boyle  v.  Ed- 
wards, 114  Mass.  375;  Cummings 
V.  Harrison,  57  Miss.  275;  Sachse 
V.    Loeb,    45    Tex.    Civ.    App.    536, 


§  453:] 


Transfer  Inter  Vwos. 


1705 


the  supremacy  of  another's  title  has  been  regarded  as 
conclusive  upon  the  covenantor  when  rendered  in  a 
suit  brought  not  by  such  other  against  the  covenantee, 
but  by  the  covenantee  against  such  other,  the  covenan- 
tor being  notified  to  appear  and  prosecute  the  suit.^^ 
The  notice  need  not,  it  seems,  be  in  writing.^^  It  has 
sometimes  been  regarded  as  necessary  that  the  notice 
include  or  be  accompanied  by  a  request  that  the 
covenantor  defend  the  action,^  but  such  a  requirement 
has  not  always  been  recognized.^  Obviously  the  notice 
must  be  given  with  sufficient  promptitude  to  enable  the 
covenantor  to  prepare  his  defense.^  If  no  notice  of  the 
action  is  given  to  the  covenantor,  a  judgment  therein 
against  him  is  not  even  prhna  facie  evidence  of  the 
paramount  character  of  the  title  of  the  party  in  favor 
of  whom  it  was  rendered,^  but  apart  from  any  question 


101  S.  W.  450;  Farwell  v.  Bean, 
82  Vt.  172,  72  Atl.  731.  So  in 
the  case  of  notice  to  the  cove- 
nantor's heir,  afterwards  sued  on 
the  covenant.  Farnsworth  v. 
Kimball,  112  Me.  238,  91  Atl.  954. 

98.  Gragg  v.  Richardson,  25 
Ga.  570,  71  Am.  Dec.  190;  Sarrls 
V.  Beckman,  55  Ind.  App.  638,  104 
N.  E.  598;  Hubbard  v.  Stanaford, 
30  Ky.  L.  Rep.  1044,  100  S.  W. 
232;  Dalton  v.  Bowker,  8  Nev. 
191;  White  v.  wniiams,  13  Tex. 
258;  Pitkin  v.  Leavitt,  13  Vt. 
379. 

99.  Sarrls  v.  Beckman,  55  Ind. 
App.  638.  104  N.  E.  598;  Rich- 
stein  V  Welch,  197  Mass.  224,  83 
N.  E.  417;  Cummings  v.  Harrison. 
57  Miss.  275;  Walton  v.  Camp- 
bell, 51  Neb.  788,  71  N.  W.  737; 
Miner  v.  Clark,  15  Wend.  (N.  Y.) 
426.  Contra,  Mason  v.  Kellogg, 
38  Mich.  132,  approved  in  Rawle. 
Covenants,   §   119. 

1.  Pence  v.  Rhonemus,  58  Ind. 
App.  268,  108  N.  E.  129;   Wheelock 


V.  Overshiner,  110  Mo.  100,  19  S. 
W.  640;  Paul  v.  Witman,  3  Watts 
&  S.  (Pa.)  409;  Clark  v.  Mum- 
ford,  62  Tex.  532;  Anderson  v. 
Bigelow,  16  Wash.  198,  47  Pac. 
426.  That  the  convenautor  must 
be  "tendered  the  opportunity  to 
take  upon  himself  the  defense" 
is  asserted  in  Richstein  v.  Welch, 
197  Mass.  224,   83   N.  E.  417. 

2.  Cummings  v.  Harrison,  57 
Miss.  275;  Jones  v.  Balsley,  154 
N.  Car.  61,  69  S.  E.  827;  Morgan 
V.  Haley,  107  Va.  331,  13  L.  R. 
A.  (N.  S.)  732.  122  Am.  St.  Rep. 
846,  13  Ann.  Cas.  204,  58  S.  E. 
564. 

3.  Fassler  v.  Streit,  100  Neb. 
722,  161  N.  W.  172;  Morette  v. 
Bostwick,  127  N.  Y.  App.  Div. 
701,  111  N.  Y.  Su'pp.  1021;  Middle- 
ton  v.  Thompson,  1  Speers  L.  (S. 
Car.)  67;  Somers  v.  Schmidt,  24 
Wis.  421,  1  Am.  Rep.   191. 

4.  Rawle,  Covenants  §,  123 
and  cases  cited.  Osburn  v.  Prltch- 
ard,    104    Ga.    145,    30    S.    E.    656; 


17()()  Real,  Propeety.  [§<§  454,  455 

kof  notice  the  covenantor  is  bound  by  the  judgment  it 
he  is  a  party  thereto.^ 

§  454.  Covenant  for  further  assurance.  The  cov- 
enant by  the  grantor  to  make  such  other  assurances 
as  may  be  necessary  to  perfect  the  title  is  less  ex- 
tensively used  in  the  United  States  than  any  of  the  other 
covenants  for  title,  though  its  importance  to  the  pur- 
chaser, it  has  been  said, ' '  can  hardly  be  overrated. '  '^  Un- 
der this  covenant,  the  convenantor  may  be  required  to  do 
such  further  acts  as  may  be  necessary  on  his  part  to 
perfect  the  title  which  the  conveyance  purports  to 
pass,  but  the  covenantee  cannot  demand  that  he  do 
acts  which  are  unnecessary,  or  which  it  is  impossible 
for  him  to  do.  The  remedy  under  this  covenant  is 
more  often  by  a  suit  for  specific  performance  than  by 
an  action  of  damages,  as  in  the  case  of  the  other 
covenants.'^ 

§  455.  The  measure  of  damages — Covenant  for  sei- 
sin. In  an  action  for  breach  of  the  covenant  for  seisin, 
the  measure  of  damages  is  ordinarily  the  amount  of 
the  consideration  paid  by  the  grantee,  usually  with 
interest,  such  consideration  being  presumably  the  value 

Council     Imp.    Co.    v.    Pacific    &  757;     Elliott    v.    Saufley,    89    Ky. 

Idaho  Northern  Land  &  Improve-  52,   11   S.  W.  200;    Eaker  v.  Har- 

ment   Co.,    29   Idaho   113,   57   Pac.  vey,  192  Mo.  App.  697,  179  S.  W. 

258;     Sisk    v.    Woodruff,    15    111.  985;    Smith  v.  Dixon,  27  Ohio  St. 

15;     Dalton    v.    Bowker,    8    Nev.  477;   Jennings  v.  Kiernan,  35  Ore. 

190;  Baumgartner  v.  Chipman,  30  349,   55   Pac.  443,   56   Pac.   72. 

Utah,  466,  86  Pac.  411;   Anderson  6.     Rawle,  Covenants  for  Title, 

V.  Blgelow,  16  Wash.  198,  47  Pac.  §    98.      See    Cochran   v.    Pascault, 

426;   Wallace  v.  Pereles,  109  Wis.  54  Md.  1. 

316,   53  L.  R.  A.  644,  83  Am.   St.  7.     Rawle,  Covenants.  §§  99-109. 

Rep.    898,    85    N.    W.    371.      See  The  fact  that  this  covenant  may 

Kapiolani  Estate  v.  Atcherley,  238  be    enforce^d   by    specific    perform- 

U.  S.  119,  59  L.  Ed.  1229.  ance,    while    the    other    covenants 

5.     Seyfried    v.    Knoblauch.    44  for    title    cannot,    is    the    reason, 

Colo.  86,  96  Pac.  993;    Samson  v.  as    stated    by    Mr.    Rawle,    of    its 

Zimmerman,  73  Kan.  654,  85  Pac.  great  value  to  the  purchaser. 


§  455] 


Transfer  Inter  Vivos. 


1707 


of  the  land  at  the  time  of  the  sale,  with  a  view  to  which 
the  covenant  w^as  made.^  Adopting  this  measure  of 
damages  in  case  the  breach  is  as  to  part  of  the  premises 
only,  the  recovery  is  a  part  of  the  consideration, 
proportioned  to  the  vahie  of  snch  part.'-^  And  if  the 
estate  which  passes  is  less  than  that  purported  to  be 
conveyed,  the  amount  recoverable  is  the  consideration 
paid  less  the  value  of  the  estate  which  actually  passes. ^'^ 
Occasionally  the  view  has  been  asserted  that  the 
covenantee  can  recover  only  nominal  damages  on  ac- 
count of  a  breach  of  the  covenant  for  seisin,  if  he  has 
in  no  way  been  disturbed  in  his  possession  of  the  land.^^ 
In  the  great  majority  of  cases,  however,  the  fact  that 
the  grantee  is  or  is  not   still  in  possession  is  not  re- 


8.  Mather  v.  Stokely,  218  Fed. 
764,  134  C.  C.  A.  442;  Logan  v. 
Moulder,  1  Ark.  313,  33  Am.  Dec. 
338;  Mitchell  v.  Hazen,  4  Conn. 
516,  10  Am.  Dec.  169;  King  v. 
Gilson's  Adm'x,  32  lU.  348,  83 
Am.  Dec.  269;  Shorthill  v.  Fer- 
guson, 44  Iowa,  249;  Cummins  v. 
Kennedy,  3  Litt  (Ky.)  118,  14 
Am.  Dec.  45;  Marston  v.  Hobbs, 
2  Mass.  433,  3  Am.  Dec.  61; 
Nichols  V.  Walter,  8  Mass.  243; 
Willson  V.  Willson,  25  N.  H.  229, 
57  Am.  Dec.  320;  Pitcher  v. 
Livingston,  4  Johns.  (N.  Y.)  1; 
Crowell  V.  Jones,  67  N.  C.  386, 
83  S.  E.  551;  Backus'  Admr's  v. 
McCoy,  3  Ohio,  211,  17  Am.  Dec. 
585;  Conklin  v.  Hancock,  67  Ohio 
St.  455,  66  N.  E.  518;  Bender  v. 
Fromberger,  4  Dall.  (Pa.)  442; 
Park  V.  Cheek,  4  Cold.  (Tenn.) 
20;  Norfolk  &  W.  Ry.  Co.  v. 
Mundy,  110  Va.  422,  66  S.  E.  61. 

9.  Bibb  V.  Freeman,  59  Ala. 
612;  Seyfried  v.  Knoblauch,  44 
Colo.  86,  96  Pac.  993;  Hubbard  v. 
Norton,  10  Conn.  422;  Lloyd  v. 
Sandusky,    20:'.    111.    621,   68    N.   E. 


154;  Wright  v.  Nipple,  92  Ind. 
310;  Scantlin  v.  Allison,  12  Kan. 
85;  Cushman  v.  Blanchard,  2  Me. 
266,  11  Am.  Dec.  76;  Cornell  v. 
Jackson,  3  Cush.  (Mass.)  506; 
Dubay  v.  Kelly,  137  Mich.  345, 
100  N.  W.  677;  Adkins  v.  Tom- 
linson,  121  Mo.  487,  26  S.  W.  573; 
Staats  V.  Ten.  Eyck's  Ex'rs,  3 
Caines  (N.  Y.)  Ill,  2  Am.  Dec. 
254;  Campbell  v.  Shaw,  170  N. 
Car.  186,  86  S.  E.  1035;  Beaup- 
lan,d  V.  McKeen,  28  Pa.  St.  124,  70 
Am.   Dec.   115. 

10.  Gray  v.  Biscoe,  Noy,  142; 
Hartford  etc.  Ore  Co.  v.  Miller, 
41  Conn.  112;  Kimball  v.  Bryant, 
25  Minn.  496;  Tanner  v.  Living- 
ston, 12  Wend.  (N.  Y.)  83;  Curtis 
V.  Brannon,  98  Tenn.  153,  69  L. 
R.  A.  760,  38  S.  W.  1073;  Bowne 
V.  Walcott,  1  N.  Dak.  415. 

11.  Hacker  v.  Blake,  17  Ind. 
97;  Hencke  v.  Johnson,  62  Iowa, 
555;  Sable  v.  Brockmeier,  45 
Minn.  248,  47  N.  W.  794;  Conklin 
V.  Hannibal  etc.,  R.  Co.  65  Mo. 
533;  Bowne  v.  Wolcott,  1  N. 
Dak.    415,    48    N.    W.    336;    Kinzie 


1708  Real  Property.  [§  455 

ferred  to  in  connection  with  the  question  of  the 
amount  of  damages  recoverable,  and  in  a  few  cases 
the  view  referred  to  is  clearly  repudiated.^-  But 
since,  if  the  covenantee  is  allowed  to  recover  what  he 
paid  for  the  land,  he  should  not  be  allowed  to  retain 
the  land,  the  courts,  in  giving  him  substantial  damages 
in  such  case,  have  occasionally  taken  measures  to  pro- 
tect the  covenantor  in  this  regard,  either  by  reciuiring 
the  tender  of  a  reconveyance  as  a  prerequisite  to  the 
recovery  of  a  judgment,^^  or  ,by  regarding  the  judg- 
ment for  damages  as  in  itself  revesting  the  title  in  the 
covenantors^  or,  it  might  be  that  the  court  will  require 
a  reconveyance  as  a  prerequisite  to  the  issue  of  exe- 
cution on  the  judgment.s^ 

Although  the  covenant  is  broken  by  reason  of 
lack  of  title  in  the  grantor  at  the  time  of  the  convey- 
ance, only  nominal  damages  can  be  recovered  if,  before 
suit  on  the  covenant,  the  lapse  of  the  limitation  period 
has  perfected  the  title  of  the  grantee,^^  or  if  the 
grantee's  title  is  perfected  by  the  grantor's  acquisi- 
tion of  the  paramount  title,  which  enures  to  the  benefit 
of  the  grantee  on  the  theory  of  estoppel. ^'^ 

In  case  the  grantee  buys  in  a  paramount  title,  he 
can   recover   the   amount   paid  therefor,   provided   this 

V.    Riely's    Ex'r,    100    Va.    709,    42  188;   Kincaid  v.  Brittain,  5  Sneed 

S.    E.    872;    Smith   v.    Hughes,    50  (Tenn.)     123;     CampbeU    v.    Mar- 

Wis.  620,  7  N.  W.  653.  tin,    89   Vt.    214,    95   Atl.   494    (on 

12.  Bolinger  v.  Brake,  57  Kan.  satisfaction  of  judgment) ;  Noon- 
663,  47  Pac.  537;  Parkinson  v.  an  v.  Ilsey,  21  Wis.  148. 
Woulds,  125  Mich.  325,  84  N.  W.  15.  See  Rawie,  Covenants,  § 
292;  Kincaid  v.  Brittain,  5  Sneed  185;  Catlin  v.  Hurlburt,  3  Vt. 
(Tenn.)  119;  Blake  v.  Burnham,  403;  Ives  v.  Niles,  5  Watts  (Pa.) 
29   Vt.   437.  323;    Campbell    v.   Martin,    89   Vt. 

13.  Shorthill    v.    Ferguson,    44  214,   95  Atl.   494. 

Iowa,    249,    47    Iowa,    284;    Frazer  16.     Wilson    v.    Forbes.    2    Dev. 

V.    Supervisors    of   Peoria,    74    III.  (N.  Car.)   30;   Kincaid  v.  Britain, 

111.    282;     Flint    v.    Steadman,    36  5     Sneed     (Tenn.)     123;     Garfield 

Vt.   210.  v.    Williams,    2   Vt.    328. 

14.  Stinson  v.  Sumner,  9  Mass.  17.     Ante,    §   449,  notes  73-76. 
150;    Parifer  v.   Brown,   15  N.  H. 


§  455] 


Transfer  Inter  Vivos. 


1709 


was  a  fair  and  reasoiia])le  price,  and  no  more.^^ 

The  covenant  for  right  to  convey  beins;  the  equiva- 
lent of  the  covenant  of  seisin,  it  follows  that  the  mea- 
sure of  damages  for  breach  is  the  same,  that  is, 
ordinarily    the    amount    of    the    consideration    paid.^'' 

Covenant  for  quiet  enjoyment  and   v/arranty. 


Tlie  measure  of  damages  for  breach  of  a  covenant  for 
quiet  enjoyment  or  of  warranty  is,  by  the  weight  of 
authority,  the  same  as  that  for  breach  of  the  covenant 
for  seisin  or  of  right  to  convey,  that  is,  in  the  ordinary 
case,  the  value  of  the  land  at  the  time  of  the  convey- 
ance, as  measured  by  the  consideration  paid,  without 
reference  to  any  increase  in  value  arising  from  the 
development  of  the  neighborhood  or  the  improvement 
of  the  land  itself.-*^  In  some  of  the  New  England  states, 


18.  Anderson  v.  Knox,  20  Ala. 
156:  Pate  v.  MarshaU,  23  Ark. 
591;  Weber  v.  Anderson,  73  lU. 
439;  Bolinger  v.  Brake,  57  Kan. 
663,  47  Pac.  537;  Spring  v.  Chase, 
22  Me.  505,  39  Am.  Dec.  500; 
KimbaU  v.  Bryant,  25  Minn.  496; 
Hall  V.  Bray,  51  Mo.  288;  Werner 
V.  Wheeler,  142  App.  Div.  358,  127 
N.  Y.  Supp.  158;  Price  v.  Deal,  90 
N.  Car.  290;  Eames  v.  Armstrong, 
146  N.  Car.  1,  125  Am.  St.  Rep. 
436,  59  S.  E.  165;  Cobb  v. 
Klosterman.  58  Ore.  211,  114  Pac. 
96. 

19.  Mitchell  v.  Hazen,  4  Conn. 
516,  10  Am.  Dec.  109;  Willson  v. 
Wlllson,  25  N.  II.  233,  57  Am. 
Dec.  320;  Hodges  v.  Thayer.  110 
Mass.  286;  Kinzie  v.  Riely's  Ex'r, 
100  Va.  709,  42  S.  E.  872  (nominal 
damages)  ;  Messer  v.  Oestreich,  52 
Wis.    684,    10    N.   W.    6. 

20.  Allinder  v.  Bessemer  Coal, 
Iron  &  Land  Co.,  164  Ala.  275,  51 
So.  234;  Weber  v.  Anderson,  73 
Til.  439;   Burton  v.  Reeds,  20  Tnd. 

R.  P.— 33 


87;  Swafford  v.  Whipple,  3  G. 
Greene  (Iowa)  261,  54  Am.  Dec. 
498;  Efta  v.  Swanson,  115  Minn. 
373,  132  N.  W.  335;  Winnipiseogee 
Paper  Co.  v.  Eaton,  65  N.  H.  13, 
18  Atl.  171;  Bennett  v.  Jenkins, 
13  Johns.  (N.  Y.)  50;  Hunt  v. 
Hay,  214  N.  Y.  578,  108  N.  E.  851; 
Clark  V.  Parr,  14  Ohio,  118,  45 
Am.  Dec.  529;  Brown  v.  Dicker- 
son,  12  Pa.  St.  372;  Elliott  v. 
Thompson,  4  Humph.  Tenn.)  99, 
40  Am.  Dec.  630;  Lewis  v.  Ross, 
95  Tex.  358,  67  S.  W.  405;  Far- 
well  V.  Bean,  82  Vt.  172,  72  Atl. 
731;  Conrad  v.  Effinger,  87  Va. 
59,  24  Am.  St.  Rep.  646,  12  S. 
E.  2;  West  Coast  Mfg.  &  Inv. 
Co.  V.  West  Coast  Imp.  Co.,  31 
Wash.   610,  72   Pac.   455. 

The  amount  of  the  considera- 
tion paid  by  the  covenantee,  rath- 
er than  that  received  by  the 
covenantor,  determines  the  dam- 
ages. Hunt  V.  Hay,  214  N.  Y. 
.578,   108  N.  E.  851. 


1710  Eeal  Pkopebty.  [§  455 

however,  the  covenants  for  quiet  enjoyment  and  of 
warranty  are  regarded  as  intended  to  indemnify  the 
covenantee  for  any  loss  suffered  by  him,  and  as  con- 
sequently entitling  him  to  damages  to  the  extent  of  the 
value  of  the  land  at  the  time  of  the  eviction.-^  Such 
a  rule  may  involve  a  very  great  burden  upon  one 
who  sells  land  his  title  to  which  is  defective,  though  he 
believes  it  to  be  good,  he  being  thereby  made  liable 
for  the  cost  of  all  improvements,  however  great,  made 
by  his  grantee,  as  well  as  for  any  increase  in  value 
arising  from  growth  of  population  and  the  like  causes.^^ 
Upon  a  breach  of  the  covenant  as  regards  a  part  of 
the  land  only,  the  grantee  is  .  entitled  to  recover  a 
proportioned  part  of  what  he  could  have  recovered  on 
a    total   breach.23 

In  case  the  grantee  is  not  actually  dispossessed, 
but  buys  in  the  outstanding  title,  he  is  ordinarily  en- 
titled, in  an  action  on  the  covenant  of  warranty  or  for 
quiet  enjoyment,  to  recover  only  the  amount  paid  by 
him  therefor.24     jj^  gQ  f ^j.  ^s  there  may  be  a  breach  by 

21.  Horsford  v.  Wright,  Kirby  92  Tex.  44,  45  S.  W.  562;  West 
(Conn.)  3,  1  Am.  Dec.  8;  Gore  v.  Coast  Mfg.  &  Inv.  Co.  v.  West 
Brazier,  3  Mass.  523,  3  Am.  Dec.  Coast  Imp.  Co.,  31  Wash.  610,  72 
182;  Cecconi  v.  Rodden,  147  Mass.  Pac.  455;  Butcher  v.  Peterson,  26 
64,  16  N.  E.  749;  Park  v.  Bates,  W.  Va.  447,  53  Am.  Rep.  89. 
12  Vt.  381,  36  Am.  Dec.  347;  24.  Brawley  v.  Copelin,  106 
Williamson  v.  Williamson,  71  Ark.  256,  153  S.  W.  101;  Clay- 
Me.   442.  comb     v.     Munger,     51     111.     373; 

22.  See  Rawle,  Covenants,  §§  Beasley  v.  Phillips,  20  Ind.  App. 
165-171.  182,    50    N.    E.    488;     Sullivan    v. 

23.  Hoffman  v.  Kirby,  136  Cal.  Hill,  33  Ky.  L.  Rep.  962,  112  S. 
26,  68  Pac.  321;  PhiUips  v.  W.  564;  LefBngwell  v.  Elliott. 
Reichert,  17  Ind,  120,  79  Am.  8  Pick.  (Mass.)  455;  Brooks  v. 
Dec.  463;  McNally  v.  White,  154  Mohl,  104  Minn.  404,  116  N.  W. 
Ind.  63,  54  N.  E.  794,  56  N.  E.  931;  Halloway  v.  Miller,  84  Miss. 
214;  James  v.  Louisville  Public  776,  36  So.  531;  Cheney  v. 
Warehouse  Co.,  23  Ky.  Law  Rep.  Straube,  35  Neb.  521,  53  N.  W. 
1216,  64  S.  W.  966;  Boyle  v.  Ed-  479;  Lemby  v.  Ellis,  146  N.  Car. 
wards,  114  Mass.  373;  AUen  v.  221,  59  S.  E.  683;  Arrigoni  v. 
Miller,  99  Miss.  75,  54  So.  731;  Johnson,  6  Oreg.  167;  Cox  v. 
Mengel  v.  Williamson,  50  Pa.  Henry,  32  Pa.  St.  18;  Mengel  v. 
Super.  Ct.  100;  Hynes  v.  Packard,  Williamson,  50  Pa.  Super.  Ct.  100; 


§  455J 


Transfer  Inter  Vivos. 


1711 


reason  of  an  easement  outstanding  in  a  third  person,^^ 
he  can,  it  seems,  recover  only  the  amount  of  the  conse- 
quent decrease  in  the  value  of  the  land.-*'  In  so  far 
as  damages  for  breach  of  a  covenant  for  title  may  be 
measured  by  the  consideration  paid,  the  recital  in  that 
regard  in  the  conveyance  is  not  conclusive  as  to  the 
amount.^ '^ 

Covenant  against  incumbrances.    TLe  covenant 


against  incumbrances  is  considered  as  one  for  indemnity 
only,  and  the  covenantee  can  recover  no  more  than 
what  he  may  have  been  compelled  to  pay  in  order  to 
extinguish  the  outstanding  incumbrance,^^  or,  in  case 
he  can  not  so  extinguish  it,  the  amount  of  injury  which 
he  may  be  considered  to  have  suffered  from  its  exis- 
tence, ordinarily  measured  by  the  resulting  diminution 
in  the  value  of  the  land.^^    But  though  no  loss  has  been 


Brown  v.  Thompson,  81  S.  C.  380. 
62  S.  E.  440;  McClelland  v. 
Moore,  48  Tex.  355;  Cameron  v. 
Burke,  61  Wash.  203,  112  Pac. 
252.  But  see  Nolan  v.  Feltman, 
12    Bush.     (Ky.)     119. 

25.  Ante,  §   453,  notes  76-78. 

26.  Harrington  v.  Bean.  89  Me. 
470,  36  Atl.  986;  Schwartz  v. 
Black,  131  Tenn.  360,  Ann.  Cas. 
1916C   1195,   174   S.   W.   1146. 

27.  Bass  V.  Starnes,  108  Ark. 
357.  158  S.  W.  136;  Rook  v. 
Rook,  111  111.  App.  398;  Cook  v. 
Curtis.  68  Mich.  611,  36  N.  W. 
692;  Holmes  v.  Seaman,  72  Neb. 
300,  100  N.  W.  417,  101  N.  W. 
1030;  Mayer  v.  Wooten.  46  Tex. 
Civ.  App.  327,  102  N.  W.  423. 

28.  Fraser  v.  Bentel,  161  Cal. 
390,  Ann.  Cas.  1913B,  1062,  119 
Pac.  509;  Mitchell  v.  Hazen,  4 
Conn.  495,  10  Am.  Dec.  169;  Amos 
V.  Cosby,  74  Ga.  793;  McDowell 
V.  Milroy,  69  111.  498;  Boice  v. 
Coffeen,    158    Iowa,    705,    138    N. 


W.  857;  Reed  v.  Pierce,  36  Me. 
455,  58  Am.  Dec.  761;  Johnson  v. 
Collins,  116  Mass.  392;  Kellogg 
V.  Malin,  62  Mo.  429;  Hartshorn 
V.  Cleveland,  52  N.  .1.  Law  473, 
19  Atl.  974;  Corbett  v  Wren,  25 
Oreg.  305,  35  Pac.  658;  Myers  v. 
Brodbeek,  110  Pa.  St.  198,  5  Atl. 
662;  Pritchard  v.  Rebori,  135 
Tenn.  328,  186  S.  W.  121;  George 
A.  Lowe  Co.  v.  Simmons  Ware- 
house Co.,  39  Utah,  395,  Ann. 
Cas.  1913E,  246,  117  Pac.  874; 
Eaton   V.    Lyman,    30    Wis.    429. 

29.  Rawle,  Covenants,  §§  190, 
191;  Fraser  v.  Bentel,  161  Cal. 
390,  Ann.  Cas.  1913B,  1062,  119 
Pac.  509;  Mitchell  v.  Stanley,  44 
Conn.  312;  Morgan  v.  Smith,  11 
111.  194;  Kostendader  v.  Pierce, 
37  Iowa,  645;  Harrington  v.  Bean, 
89  Me.  470,  36  Atl.  986;  Wether- 
bee  V.  Bennett,  2  Allen  (Mass.) 
428;  Bailey  v.  Agawam  Nat. 
Bank.  190  Mass.  20.  3  L.  R.  A. 
(N.     S.)     98,     112     Am.     St.     Rep. 


1712 


Ukal.  Pkopekty. 


[§  455 


sustained  at  the  time  of  bringing  suit,  he  may  recover 
nominal  damages,  since  the  covenant  is  regarded  as 
broken  as  soon  as  made,  when  there  is  any  outstanding 
incumbrance.'^  ° 

In  those  states  in  which  the  recovery  on  a  covenant 
for  quiet  enjoj^nent  or  of  warranty  is  limited  to  the 
amount  of  the  consideration  paid,  the  recovery  for 
breach  of  the  covenant  against  incumbrances  is  likewise 
so  limited,  no  matter  what  exj^enditure  or  loss  the  cove- 
nantee may  have  incurred  on  account  of  the  incum- 
brance.''^ 


296,  76  N.  E.  449;  Mackey  v. 
Harmon,  34  Minn.  168,  24  N.  W. 
702;  KeUofeg  v.  Malin,  62  Mo. 
429;  WiUson  v.  Willson,  25  N. 
H.  229,  57  Am.  Dec.  320;  Wil- 
liams V.  Hewitt,  57  Wash.  62, 
135  Am.  St.  Rep.  971,  106  Pac. 
496;  Smith  v.  White,  71  W.  Va. 
639,  48  L.  R.  A.  (N.  S.)  623, 
78  S.  E.  378;   Gadow  v.  Hunholtz, 

160  Wis.  293,  151  N.  W.  810. 
See  McGuckin  v.  Milbank,  152 
N.  Y.  297,   46  N.  E.  490. 

When  the  breach  arises  from 
the  existence  of  an  outstanding 
term  of  years,  the  value  of  tho 
use  of  the  land  for  such  term 
has  been  regarded  as  the  meas- 
ure of  damages.  Barker  v.  Den- 
ning. 91  Kan.  485,  138  Pac.  573; 
Malsbury  v.  Jacobus,  88  Neb.  751, 
130  N.  W.  424;  Porter  v.  Bradley, 
7  R.  I.  542. 

30.  Tuskegee  Land  &  Security 
Co.    V.    Birmingham    Realty    Co., 

161  Ala.  542,  23  L.  R.  A.  (N. 
S.)  992,  49  So.  378;  Ensign  v. 
Colt,  75  Conn.  Ill,  52  Atl.  829. 
946;  WiUetts  v.  Burgess,  34  111. 
494;  Thompson  v.  Richmond,  102 
Me.  335,  66  Atl.  649;  Wilcox  v. 
Musche,    39    Mich.    101;    Walker's 


Adm'r  v.  Deaver,  79  Mo.  664; 
Smith  V.  Jefts,  44  N.  H.  482; 
Hasselbuch  v.  Mohmking,  76  N. 
J.  L.  691,  73  Atl.  961;  McGucken 
V.  Milbank,  152  N.  Y.  297,  46  N. 
E.  490;  Fishel  v.  Browning,  145 
N.  C.  71,  58  S.  E.  759;  Funk  v. 
Voneida,  11  Serg.  &  R.  (Pa.)  109, 
14  Am.  Dec.  617;  International 
Development  Co.  v.  Clemans,  59 
Wash.  398.  109  Pac.  1034;  In  re 
Hanlin's  Estate,  133  Wis.  140, 
113  N.  W.  411;  Rawle,  Covenants, 
§§  188,  189. 

That  the  grantee  could  have 
recovered  nominal  damages  on  a 
covenant  against  incumbrances  by 
reason  of  an  outstanding  mort- 
gage does  not  prevent  a  recovery 
on  the  covenant  of  warranty  upon 
his  eviction  after  foreclosure  of 
the  mortgage.  Smith  v.  Wahl, 
88   N.    J.   L.   623,   97   Atl.   261. 

31.  Rawle,  Covenants,  §  193; 
Collier  v.  Cowger,  52  Ark.  322,  6 
L.  R.  A.  107,  12  S.  W.  702;  Guth- 
rie  V.  Russell,  46  Iowa,  269,  26 
Am.  Rep.  135;  Dimmick  v.  Lock- 
wood,  10  Wend.  (N.  Y.)  142; 
Foote  V.  Burnet,  10  Ohio,  317,  36 
Am.  Dec.  90;  George  A.  Lowe 
Co.    V.    Simmons   Warehouse   Co., 


§  455]  Transfer  Inter  Vivos.  173  3 
Interest.     Interest  from  the  time  of  plaintiff's 


eviction  is  })resumaMy  always  recoverable  by  him,^^ 
since  from  that  time  he  is  deprived  of  the  use  of  his 
money  and  also  of  the  use  of  the  land.  For  a  like 
reason  a  covenantee  who,  by  reason  of  an  outstanding 
title,  fails  to  acquire  the  possession  of  the  land  under 
the  conversance  to  him,  is  entitled  to  interest  on  the 
purchase  price  paid  by  him  from  the  time  of  its  pay- 
ment.^^ 

Whether,  when  the  covenantee  did  acquire  the  pos- 
session under  his  conveyance,  he  is  entitled  to  interest 
on  the  purchase  price  for  the  period  previous  to  his 
eviction  by  the  paramount  owner,  has  ordinarily  been 
regarded  as  dependent  on  the  question  of  his  liability 
to  the  latter  for  mesne  profits."^ ^  Except  for  this  liabil- 
ity, he  might  well  be  regarded  as  compensated,  by  his 
enjoyment  of  the  land,  for  his  deprivation  of  the  use 
of  the  money,  and  so  not  entitled  to  interest.  But  the 
courts  usually  assume  that  if  he  has  not  already  been 
made  liable  for  such  profits,  he  will  be  made  so  liable, 
and  consequently  do  not  regard  his  enjoj^nent  of  the 
land  as  in  itself  sufficient  to  deprive  him  of  interest. 
In  so  far,  however,  as  his  non  liability  for  mesne  profits 
can  be  regarded  as  established,  by  adjudication  or 
otherwise,  he  is  not  entitled  to  interest,"'-^  and,  so  if,  by 

39   Utah,   395,  117   Pac.   874,   Ann.  Tex.   37,   16   S.  W.   623. 

Gas.  1913E,  246;   Eaton  v.  Lyman,  34.     In    Virginia    the    recovery 

30  Wis.   41.  of   interest    is    restricted    to    that 

32.     Collier  v.  Cowger,  52  Ark.  which      accrues      after      eviction. 

322,  6  L.  R.  A.  107,  12  S.  W.  702;  Threlkeld    v.    Fitzhugh,    2    Leigh, 

Spring    V    Chase,    22    Me    505,    39  451;     Abernathy    v.    Phillips,     82 

Am.  Dec.  595;  Hutchins  v.  Round-  Va.  769,  1   S.  E.  ll;i. 

tree,     77    Mo.     500;     Henning    v.  35.     Harding  v.  Larkin,   41   111. 

Withers,    3    Brev.    (S.    C)    458,    6  413;    White    v.    Tucker,    52    Miss. 

Am.  Dec".  589;   Conrad  v.  Effinger,  145;    Withers    v.    Bank    of    Com- 

87  Va.  59,  24  Am.  St.  Rep.  649.  merce    &    Trust    Co.,     104    Miss. 

3^.     Graham    v.    Dyer,    16    Ky.  681,     61     So.     690;     McGuffey     v. 

L.  Rep.  541,  29  S.  W.  'MG;  Hutch-  Humes.    85    Tenn.    26.    1    S.    W. 

ins    V.    Roundtree.    77    Mo.    500;  506;    Mann   v.    Mathews,    82    Tex. 

Hunt   V.    Nolen,   46    S.    C.    551,   24  98,   17   S.  W.   927;    Flint  v.   Stead- 

S.    E.    543;    Johns    v.    Hardin,    81  man,    36    Vt.    210.      Contra,    Rhea 


171-t  Eeal.  Property.  [§  455 

reason  of  the  statute  of  limitations,  or  for  some  other 
reason,  he  is  liable  for  mesne  profits  for  only  a  limited 
number  of  years  back,  his  right  to  recover  interest  is 
limited  to  those  years.''*'  Occasionally  the  immunity 
of  the  covenantee  from  liability  for  mesne  profits  has 
been  regarded  as  precluding  his  recovery  of  interest 
only  in  so  far  as  the  land  was  capable  of  beneficial  use,^^ 
but  the  correctness  of  such  a  view  is  open  to  question.^^ 

Expenses  of  litigation.     Since  the  covenantee. 


if  he  relinquishes  possession  on  the  demand  of  one 
asserting  a  paramount  title,  has  the  burden  of  showing 
that  the  claimant's  title  is  paramount,''**  it  appears  just 
and  equitable  that  he  should  have  the  privilege  of 
defending  against  the  adverse  claim  without  incurring 
loss  by  so  doing.  This  has  been  generally  recognized 
by  the  courts  to  the  extent  of  giving  him,  as  an  element 
of  damages  in  an  action  on  the  covenant,  the  costs  in 
an  action  against  him  by  the  paramount  claimant, 
which  action  he,  in  good  faith  but  unsuccessfully,  un- 
dertook to  defend.*^     In  some  states  the  covenantee  is 

V.  Swain,   122   Ind.  272,   22  N.   E.  37.     Wood  v.  Kingston  Coal  Co., 

1000,  23  N.  E.  776.  48    IH.    356,    95    Am.    Dec.    554; 

36.     Fernander  v.  Dunn,  19  Ga.  Yazoo    &    M.    V.    R.    Co.    v.    Ban- 

497,  65  Am.  Dec.  607;   Harding  v.  ister,   89   Miss.   808,  42   So.  345. 
Larkin,    41    111.    413;     Spring    v.  38.     See    Spring    v.    Chase,    22 

Chase,    22    Me.    505,    39    Am.    Dec.  Me.  505,  39  Am.  Dec.  595. 
595;    Stebbins    v.    Wolf,    33    Kan.  39.     Ante,   §    453,  note  96. 

765,    7    Pac.    542;     Thompson    v.  40.     Kingsbury    v.     Milner,     69 

Jones,    11    B.    Mon.     (Ky.)     365;  Ala.    502;    Beach   v.   Nordman,    90 

Hutchins    v.    Roundtree,    77    Mo.  Ark.     59,     117     S.     W.     785;     Mc- 

500;    Morris   v.    Rowan,    17   N.    J.  Cormick   v.   Marcy,    165   Cal.    449, 

L.    304;    Poster    v.   Thompson,    41  132  Pac.  449;   Harding  v.  Larkin. 

N.    H.    373;    Staats   v.    Ten   Eyck,  41   111.   413;    Stebbins  v.  Wolf,   33 

3    Caines,    111,    2    Am.    Dec.    256;  Kan.    765,   7   Pac.   542;    Robertson 

Caulkins  v.  Harris,  9  Johns,  324;  v.    Lemon,    2    Bush      (Ky.)     302; 

Bennett     v.     Jenkins,     13     Johns.  Dubay    v.    Kelly,    137    Mich.    345, 

(N.    Y.)     50;     Clark    v.    Parr,    14  100  N.  W.  677;    Brooks     v.  Mohl, 

Ohio,   118,  45  Am.  Dec.  529;    Cox  104    Minn.    404,    116    N.    W.    931; 

V.  Henry,  32  Pa.  18;   Mengel  Box  Brooks    v.    Black,    68    Miss.    161, 

Co.   V.    Ferguson,    124    Tenn.    433,  11  L.  R.  A.  176,  24  Am.  St.  Rep. 

137  S.  W.  101.  259,  8  So.  332;   Hazelett  v.  Wood- 


§  455] 


Transfer  Inter  Vrv'os. 


1715 


also  allowed  the  reasonable  amount  of  fees  paid  his 
attorney  in  such  action,^  ^  while  in  others  his  right  to 
attorney's  fees  is  denied.^ ^  Not  infrequently  the  cove- 
nantee has  been  caid  to  be  entitled  to  recover  the  ex- 
pense or  cost  of  such  previous  litigation,  an  expression 
presumably  broad  enough  to  include  attorney's  fees  as 
well  as  taxed  costs.^^ 


ruff.  150  Mo.  534,  51  S.  W.  1048; 
Taylor  v.  Holier,  1  Mont.  688; 
Jones  V.  Balsley,  154  N.  C.  61, 
69  S.  E.  827;  Pitcher  v.  Living- 
ston, 4  Johns.  (N.  Y.)  4  Am. 
Dec.  229;  McAlpin  v.  Woodruff, 
11  Ohio  St.  120;  Welsh  v.  Kiliber, 
5  S.  C.  405;  Mengel  Box  Co.  v. 
Ferguson,  124  Tenn.  433,  137  S. 
W.  101;  Morgan  v.  Haley,  107  Va. 
331,  13  L.  R.  A.  N.  S.  732,  12 
Am.  St.  Rep.  846,  13  Ann.  Cas. 
204,  58  S.  E.  564.  Contra,  Taylor 
V.  Allen,  131  Ga.  416,  62  S.  E. 
291;  Terry's  Ex'r  v.  Drabenstadt, 
48  Pa.  400;  Clark  v.  Mumford,  62 
Tex.  531.  See  Shook  v.  Lanfer, 
(Tex.  Civ.  App.)    100  S.  W.  1042. 

The  covenantee  is  obviously  not 
entitled  to  the  costs  of  defending 
an  action  in  which  he  is  suc- 
cessful, since  this  would  impose 
liability  under  the  covenant  for 
the  act  of  a  third  person  not 
having  paramount  title.  Hoffman 
V.  Dickson,  65  Wash.  556,  39  L. 
R.  A.  (N.  S.)  67,  Ann.  Cas.  1913B, 
869,  118  Pac.  737;  Smith  v.  Par- 
sons, .-.S  W.  Va.  644,  11  S.  E. 
68. 

41.  Beach  v.  Nordman,  90  Ark. 
59,  117  S.  W.  785;  McCormick  v. 
Marcy,  165  Cal.  449,  132  Pac. 
449;  Harding  v.  Larkin,  41  111. 
413;  Meservey  v.  Snell,  94  Iowa, 
222,  58  Am.  St.  Rep.  391,  62  N. 
W.  767;    Burchfield  v.  Brinkman, 


92  Kan.  377,  140  Pac.  894;  Robert- 
son v.  Lemon,  2  Bush  (Ky.) 
302;  Ryerson  v.  Chapman,  66  Me. 
557;  Brooks  v.  Mohl,  104  Minn. 
404,  116  N.  W.  931;  Hazelett  v. 
Woodruff,  150  Mo.  534,  51  S.  W. 
1048;  Taylor  v.  Holter,  1  Mont. 
688;  Walton  v.  Campbell,  51  Neb. 
788,  71  N.  W.  737;  Rickert  v. 
Snyder,  9  Wend.  (N.  Y.)  416; 
Lane  v.  Fury,  31  Ohio  St.  574; 
Keeler    v.   Wood,    30    Vt.    242. 

42.  Taylor  v.  Allen,  131  Ga. 
416,  62  S.  E.  291;  Reggio  v. 
Braggiotti,  7  Cush.  (Mass.)  166; 
Brooks  V.  Black,  68  Miss.  161, 
11  L.  R.  A.  17G,  24  Am.  St.  Rep. 
259,  8  So.  332;  Holmes  v.  Sin- 
nickson,  15  N.  J.  L.  313;  Terry 
V.  Drabenstadt,  68  Pa.  400;  Jeter 
V.  Glenn,  9  Rich.  L.  (S.  C.)  374; 
Mengel  Box  Co.  v.  Ferguson, 
124  Tenn.  433,  137  S.  W.  101; 
Turner  v.  Miller,  42  Tex.  418; 
Morgan  v.  Haley,  107  Va.  331,  13 
L.  R.  A.  (N.  S.)  732,  122  Am. 
St.  Rep.  846,  13  Ann.  Cas.  204, 
58    S.   E.   564. 

43.  Beach  v.  Nordman,  90  Ark. 
59,  117  S.  W.  785;  Butler  v. 
Barnes,  61  Conn.  399,  24  Atl. 
328;  Meservey  v.  Snell,  94  Iowa, 
222,  58  Am.  St.  Rep.  391,  62  N. 
W.  767;  Stebbins  v.  Wolf,  33 
Kan.  7G5,  7  Pac.  542;  Quick  v. 
Walker,  125  Mo.  App.  257,  102  S. 
W.  33;   Williamson  v.  Williamson, 


1716 


Real,  Peoperty. 


[§  455 


The  view  has  occasionally  been  asserted  or  sug- 
gested that  the  costs  of  the  previous  action,^^  or  the 
amount  of  attorneys'  fees  therein,* ^^*^  should  be  al- 
lowed only  in  case  the  covenantee  notified  the  covenantor 
of  the  litigation  in  time  to  enable  the  latter  to  deter- 
mine the  advisability  of  contesting  the  adverse  claim, 
the  covenantee  being  in  that  case  entitled  to  recover 
such  expenditures  unless  the  covenantor  requested  him 
not  to  make  the  contest. 

The  allowance  to  the  covenantee  of  the  cost  of  pre- 
vious litigation  between  him  and  the  paramount  claim- 
ant has  not  been  confined  to  the  case  of  an  action 
against  him  by  such  claimant,  but  has  been  extended  to 
the  case  of  a  proceeding  by  him  against  such  claimant 


71  Me.  442;  Cheney  v.  Straube, 
35  Neb.  521,  53  N.  W.  479; 
Ryerson  v.  Chapman,  66  Me.  557; 
Richmond  v.  Ames,  164  Mass.  467, 
41  N.  E.  671;  Brooks  v.  Mohl, 
104  Minn.  404.  17  L.  R.  A.  (N. 
S.)  1195,  116  N.  W.  931;  Taylor 
V.  Holter,  1  Mont.  688;  Drew  v. 
Towle,  30  N.  H.  531  {semble); 
Winnepiseogee  P.  Co.  v.  Eaton, 
65  N.  H.  13,  18  Atl.  171  (semble) ; 
Lane  v.  Fury,  31  Ohio  St.  574; 
Point  St.  Iron  Works  v.  Turner, 
14  R.  I.  122,  51  Am,  Rep.  364; 
Keeler  v.  Wood,  30  Vt.  242;  Tar- 
bell  V.  Tarbell,  60  Vt.  486,  15  Atl. 
]04. 

44.  De  Jarnette  v.  Dreyfus, 
166  Ala.  138.  51  So.  932;  Butler 
V.  Barnes,  61  Conn.  399,  24  Atl. 
328;  Teague  v.  Whaley,  20  Ind. 
App.  26,  50  N.  E.  41;  Walsh  v. 
Dunn,  34  111.  App.  146;  Mercantile 
Trust  Co.  V.  South  Park  Resi- 
dence Co..  94  Ky.  271,  22  S.  W. 
314;  Hutchins  v.  Roimdtree,  77 
Mo.  500;  Mengel  Box  Co.  v.  Fer- 
guson,  124   Tenn.    433,   137   S.   W. 


101.  But  that  no  notice  is  neces- 
sary, see  Ryerson  v.  Chapman, 
66  Me.  557;  Morris  y.  Rowan, 
17  N.  J.  L.  304;  Tarbell  v.  Tar- 
bell, 60  Vt.  486,  15  Atl.  104. 
See  Matheny  v.  Stewart,  108  Mo. 
73,  17  S.  W.  1014. 

45-46.  Garner  v.  Morris,  187 
Ala.  658,  65  So.  1000;  Teague  v. 
Whaley,  20  Ind.  App.  26,  50  N.  E. 
41;  Meservey  v.  Snell,  94  Iowa, 
222,  58  Am.  St.  Rep.  391,  62  N. 
W.  767;  Mercantile  Trust  Co.  v. 
South  Park  Residence  Co.,  94  Ky. 
271,  22  S.  W.  314;  Crisfield  v. 
Storr,  36  Md.  129,  11  Am.  Rep. 
480;  Richmond  v.  Ames,  164 
Mass.  467,  41  N.  E.  671;  Macken- 
zie V.  Clement,  144  Mo.  App.  114, 
129  S.  W.  730;  Jeffords  v.  Dreis- 
bach,  168  Mo.  App.  577,  153  S. 
W.  274;  Balte  v.  Bademilfer,  37 
Ore.  27,  82  Am.  St.  Rep.  737, 
60  Pac.  601;  Ellis  v.  Abbott,  69 
Ore.  234,  138  Pac.  488;  Point  St. 
Iron  Works  v.  Turner,  14  R.  I. 
122,   51   Am.   Rep.   364. 


§  455] 


Transfer  Inter  Vivos. 


1717 


involving    the    validity    of    the    claim,    and    which    re- 
sulted in  favor  of  the  latter.^  ^ 

Action    against    remote    grantor.      Upon    the 


question  of  the  measure  of  damages  in  an  action  upon 
a  covenant  of  warrant}^  brought,  not  by  the  original 
covenantee,  but  by  a  remote  grantee  entitled  to  the 
benefit  of  the  covenant  as  one  running  with  the  land,^^ 
the  cases  are  not  in  accord.  Some  courts  have  adopted 
the  view  that  the  jnirchase  price  paid  by  the  original 
covenantee  is  the  measure  of  recovery,^^  while  others 
regard  the  recovery  as  limited  by  what  the  plaintiff 
himself  paid  for  the  land,^'^  without,  however,  recog- 
nizing any  right  to  recover  more  than  the  price  paid 
by  the  original  covenantee,  if  this  was  less  than  that 
paid  by  the  plaintiff.^^  These  latter  cases  thus  in  effect 
regard  the  covenant  as  one  for  limited  indemnity. 


47.  Chestnut  v.  Tyson,  105  Ala. 
149,  16  So.  723,  53  Am.  St.  Rep. 
101;  Gragg  v.  Richardson,  25  Ga. 
566,  71  Am.  Dec.  190  (semJyle); 
Walsh  V.  Dunn,  34  111.  App.  146; 
Yokum  V.  ThomaF,  15  Iowa,  67; 
Barnett  v.  Montgomery,  6  T.  B. 
Mon.  (Ky.)  331;  Kyle  v.  Faunt- 
leroy,  9  B.  Mon.  (Ky.)  622;  Ryer- 
son  V.  Chapman,  66  Me.  557; 
Haynes  v.  Stevens,  11  N.  H.  28.. 
Andrews  v.  Davison,  17  N.  H. 
413,  43  Am.  Dec.  606;  Lane  v. 
Fury,  31  Ohio  St.  574;  Pitkin  v. 
Leavitt,  13  Vt.  379. 

48.  Post.  §   456. 

49.  Mischke  v.  Baughn.  52 
Iowa,  528,  3  N.  W.  543:  Dough- 
erty V.  Duvall,  9  B.  Mon.  (Ky.) 
57;  Cook  v.  Curtis,  68  Mich.  611. 
36  N.  W.  692;  Brooks  v.  Black, 
68  Miss.  161,  8  So.  332,  11  L.  R. 
A.  176,  24  Am.  St.  Rep.  259;  Low- 
ranee  v.  Robertson,  10  S.  C.  8; 
Lewis  v.  Ross,  95  Tex.  358,  67  S. 
W.    405;    Hollingsworfh   v.  Mexia, 


14  Tex.  Civ.  App.  363,  37  S.  W. 
455;  Rogers  v.  Golson,  (Tex.  Civ. 
App.)    31    S.   W.   200. 

50.  Barnett  v.  Hughey,  54  Ark. 
195,  15  S.  W.  464;  Taylor  v.  Wal- 
lace, 20  Colo.  211,  46  Am.  St. 
Rep.  285,  37  Pac.  963;  Crisfield 
V.  Storr.  36  Md.  129,  11  Am.  Rep. 
480;  Moore  v.  Frankenfield,  25 
Minn.  540;  Dickson  v.  Desire,  2A 
Mo.  166;  Williams  v.  Beeman,  2 
Dev.  L.  (13  N.  C.)  483;  Mette 
V.  Dow,  9  Lea  (Tenn.)  93;  Whitz- 
man  v.  Hirsh,  87  Tenn.  513,  11 
S.  W.  421;  Eaton  v.  Lyman,  26 
Wis.  61,  7  Am.  Rep.  39. 

51.  Barnett  v.  Hughey,  54  Ark. 
195,  15  S.  W.  464;  Taylor  v. 
Wallace,  20  Colo.  211,  46  Am. 
St.  Rep.  285,  37  Pac.  963;  Cris- 
field v.  Storr,  36  Md.  129,  11  Am. 
Rep.  480;  Moore  v.  Frankenfield, 
25  Minn.  540;  Dickson  v.  Desire, 
23  Mo.  166;  Williams  v.  Beeman, 
2  Dev.  L.  (S.  C.)  483;  Whitz- 
man    v.    Hirsh,    87   Tenn.    513,    U 


1718 


Real  Propeety. 


[§  456 


§  456.     Covenants    running    with   the    land.      The 

benefit  of  a  covenant  for  title  until  breach  runs  with  the 
Iand.^'2  Upon  breach,  the  covenant  is  changed  into  a 
mere  personal  right  of  action,  to  be  enforced  by  the 
i:)erson  entitled  to  the  benefit  of  the  covenant  at  the  time 
of  the  breach,  or,  in  case  of  his  death,  his  personal 
representative,  and  not  passing  with  the  land  to  his 
heir,  or  to  his  grantee,  unless  there  is  an  express  as- 
signment  of  the   right   of  action.-"^^ 

Since  covenants  for  quiet  enjoyment  and  of  war- 
ranty are  not  broken  until  an  interference  with  the  use 
and  enjojTiient  occurs,  such  a  covenant  may  be  enforced 
by  any  person  to  whom,  after  the  making  of  the  cove- 
nant and  before  such  interference,  the  land  may  have 
passed,  whether  a  grantee  of  the  covenantee,  his  heir, 
or  his  devisee,^^  while  one  to  whom  the  land  passes  af- 
ter such  interference  has  no  right  of  action  by  reason 


S.   W.    421;    Eaton   v.    Lyman,   26 
Wis.    61,    7    Am.    Rep.    39. 

52.  Rawle,    Covenants,    §    205. 

53.  Lewis  v.  Ridge,  Cro.  Eliz. 
863;  Lucy  v.  Levington,  2  Lev. 
26;  Peters  v.  Bowman,  98  U.  S. 
56,  25  L.  Ed.  91;  Pinckard  v. 
American  Freehold  Land  Mort- 
gage Co.,  143  Ala.  568,  39  So. 
350;  Davis  v.  Lyman,  6  Conn. 
249;  Ladd  v.  Noyes,  137  Mass. 
151;  Davidson  v.  Cox,  10  Neb. 
150  4  N.  W.  1035;  Adams  v. 
Conover,  87  N.  Y.  422;  Geiszler 
V.  De  Graaf,  166  N.  Y.  339,  82 
Am.  St.  Rep.  659,  59  N.  E.  993; 
Wesco  V.  Kern,  36  Ore.  433,  59 
Pac.  548,  60  Pac.  563;  Provident 
Life  &  Trust  Co.  v.  Fiss,  147  Pa. 
St.  232,  23  Atl.  5G0;  Clement  v 
Bank  of  Rutland,  61  Vt.  298,  4 
L.  R.  A.  425,  17  Atl.  717;  Mc- 
Conaughey  v.  Bennett's  Ex'rs,  50 
W.  Va.  172,  40   S.   E.   540. 

54.  Deason  v.  Findley,  145  Ala. 


407,  40  So.  220:  Gibbons  v. 
Moore,  98  Ark.  501.  136  S.  W. 
937;  Redwine  v.  Brown,  10  Ga. 
311;  Claycomb  v.  Munger,  51  111. 
373;  Pence  v.  Rhonemus,  58  Ind. 
App.  268,  108  N.  E.  129;  Wyman 
V.  Ballard,  12  Mass.  304;  Libby 
v.  Hutchinson,  72  N.  H.  190,  55 
Atl.  547;  Suydam  v.  Jones,  10 
Wend.  (N.  Y.)  180,  25  Am.  Dec. 
552;  Keyes  &  Marshall  Bros. 
Realty  Co.  v.  Trustees  of  Canton 
Christian  College,  205  N.  Y.  593, 
98  N.  E.  1105;  King  v.  Kerr's 
Adm'rs,  5  Ohio,  154,  22  Am.  Dec. 
777;  Arnold  v.  Joines,  50  Okla. 
4,  150  Pac.  130;  Lawrence  v. 
Senter,  4  Sneed  (Tenn.)  52;  Til- 
lotson  V.  Prichard,  60  Vt.  94,  6 
Am.  St.  Rep.  95;  McConaughey 
V.  Bennett's  Ex'rs,  50  W.  Va.  172, 
40  S.  E.  540;  Patterson  v.  Cappon, 
125  Wis.  198,  10?  N.  W.  1083; 
Rawle,  Covenants,  §  213  et  seq. 


§  456] 


Transfer  Inter  Vivos. 


1719 


of  his  ownership  of  the  laiid.^^  It  appears  to  be  the 
rule,  however,  in  a  number  of  states,  that  the  benefit  of 
the  covenant  w^ll  not  pass  unless  the  covenantor,^^  or 
the  covenantee,^'''  was  in  possession  of  the  land  at  the 
time  of  his  transfer  thereof,  such  possession  being 
regarded  as  involving  an  interest  in  the  land,^^  to  which 
the  covenant  can  be  regarded  as  adhering,  while  in 
the  absence  of  such  possession  the  attempted  convey- 
ance by  the  covenantee,  with  a  paramount  title  outstand- 
ing, transfers  no  interest  whatsoever  with  which  the 
covenant  can  run. 

The  covenants  of  seisin  and  of  right  to  convey,-^^ 


55.  Gulf  Coal  &  Coke  Co.  v. 
ATusgrove,  195  Ala.  219,  70  So. 
179;  De  Long  v.  Spring  Lal^e 
Beach  Imp.  Co.,  74  N.  J.  L. 
250,  66  Atl.  591;  Thompson  v. 
Richmond,  102  Me.  33.5,  66  Atl. 
649;  Smith  v.  Richards,  155  Masn. 
79,  28  N.  E.  1132;  Moore  v.  Mer- 
rill, 17  N.  H.  75,  43  Am.  Dec. 
593. 

56.  Wilson  v.  Widenham,  51 
Me.  566;  Slater  v.  Rawson,  1 
Mete.  (Mass.)  450,  6  Id.  439; 
Allen  V.  Kennedy,  91  Mo.  324,  2 
S.  W.  142;  Iowa  Loan  &  Trust 
Co.  V.  FuUen,  114  Mo.  App.  633, 
91  S.  W.  58;  Mygatt  v.  Coe,  152 
N.  Y.  457,  46  N.  E.  949,  57  Am. 
St.  Rep.  521;  Bull  v.  Beiseker, 
16  N.  Dak.  290,  14  L.  R.  A.  (N. 
S.)  514,  113  N.  W.  870;  H.  T.  & 
C.  Co.  V.  Whitehouse,  47  Utah, 
323,  154  Pac.  950;  Dickinson  v. 
Hoomes,  8  Gratt.  (Va.)  353,  399; 
McDonald  v.  Rothgeb,  112  Va. 
749,  72  S.  E.  692;  Wallace  v.  Pere- 
les,  109  Wis.  316,  53  L.  R.  A. 
644,  83  Am.  St.  Rep.  898,  85  N.  W. 
371.  See  Solberg  v.  Robinson, 
34  S.   Dak.  55,   147   N.   W.   87. 

57.  Wead    v.    Larkin,    54     111. 


489,  5  Am.  Rep.  149;  Tillotson  v. 
Prichard,  60  Vt.  94,  6  Am.  St. 
Rep.  95,  14  Atl.  302. 

58.  The  idea,  though  not  so 
expressed  by  the  courts,  appears 
to  be  closely  analogous  to  that  of 
the  tortious  fee  acquired  by  a 
disseisor.     See  a7ite,   §   15. 

59.  Prestwood  v.  McGowin,  128 
Ala.  267,  86  Am.  St.  Rep.  136; 
ILawrenoe  v.  Montgomery,  37 
Cal.  188;  Mitchell  v.  Warner,  5 
Conn.  498;  Bethell  v.  Bethell, 
54  Ind.  428,  23  Am.  Rep.  650; 
Thompson  v.  Richmond,  102  Me. 
335,  66  Atl.  649;  Sears  v.  Broady, 
66  Neb.  207,  92  N.  W.  214; 
Chapman  v.  Holmes'  Ex'rs,  10  N. 
J.  L.  20;  Greenby  v.  Wilcocks,  2 
Johns.  (N.  Y.)  1,  3  Am.  Dec. 
379;  Mygatt  v.  Coe,  124  N.  Y. 
212,  11  L.  R.  A.  646,  26  N.  E. 
611;  Eames  v.  Armstrong,  142 
N.  Car.  506,  55  S.  E.  405;  Brady 
V.  Bank  of  Commerce  of  Coweta, 
41  Okla.  473,  Ann.  Cas.  1915B, 
1019,  138  Pac.  1020;  Solberg  v. 
Robinson,  34  S.  Dak.  55,  147  N. 
W.  87;  Clement  v.  Bank  of  Rut- 
land, 61  Vt.  298,  4  L.  R.  A.  425, 
17  Atl.  717. 


1720 


Real.  Property. 


[§  456 


and  also  the  covenant  against  inenmbrances,*'"  have,  in 
the  majority  of  the  states,  been  regarded  as  not  run- 
ning with  the  land,  the  theory  being  that  they  involve 
stipulations  that  a  certain  state  of  things  exists  at  the 
time  of  the  conveyance,  and  that  the  nonexistence  there- 
of involves  an  immediate  breach.  In  some  states, 
however,  a  different  view  has  been  adopted  as  to 
these  covenants,''^  it  being  considered  that, 'even  though  a 
technical  breach  be  regarded  as  occurring  at  the  time 
of  the  conveyance,  this  does  not  prevent  the  covenant 
from  running  until  a  breach  occurs  which  involves  sub- 
stantial damage,  and  this  view,  which  accords  in  result 
with  that  adopted  in  E-ngland,*'^  has  been  favored  by 
the  text  book  writers,  as  conducing  to  the  efficiency  of 
the  covenants  and  presumably  harmionizing  with  the 
purpose  of  their  introduction,  that  of  affording  indem- 
nity to  persons  claiming  under  the  covenantee  as  well  as 
to  the  covenantee  himself.''''^     In  some  states  a  similar 


60.  Turner  v.  Lal/son,  144  Ala. 
432,  39  So.  755;  Logan  v.  Moulder, 
1  Ark.  313,  33  Am.  Dec.  338; 
McPike  V.  Heaton,  131  Cal.  109, 
82  Am.  St.  Rep.  335;  Mitchell  v. 
Warner,  5  Conn.  498;  Thompson 
V.  Richmond,  102  Me.  335,  66 
Atl.  649;  Clark  v.  Swift,  3  Mete. 
(Mass.)  390;  Simonds  v.  Dia- 
mond Match  Co.,  159  Mich.  241, 
123  N.  W.  1132;  Blondeau  v. 
Sheridan,  81  Mo.  545;  Bryant  v. 
Mosher,  96  Neb.  555,  148  N.  W. 
329:  Moore  v.  Merrill,  17  N.  H. 
75.  43  Am.  Dec.  593;  Carter  v. 
Denman's  Ex'rs,  23  N.  J.  L.  260; 
Marbury  v.  Thornton,  82  Va.  702, 
1    S.    E.    909. 

61.  Covenants  of  seisin  and 
right  to  convey.  Martin  v.  Bak- 
er, 5  Blackf.  (Ind.)  232;  De- 
hority  v.  Wright,  101  Ind.  382; 
Schofield  V.  Iowa  Homestead  Co., 
32    Iowa,    318,    7    Am.    Rep.    197; 


Sturgis  V.  Slocum,  140  Iowa,  25, 
116  N.  W.  128;  Devore  v.  Sunder- 
land, 17  Ohio,  52,  49  Am.  Dec. 
442;  Mecklem  v.  Blake,  22  Wis. 
495;  Covenants  against  incum- 
brances. Richard  v.  Bent,  59  111. 
38,  14  Am.  Rep.  1;  Hunt  v. 
Marsh,  80  Mo.  396;  Foote  v. 
Burnet,  10  Ohio,  *317;  Cole  v. 
Kimball,  52  Vt.  639;  In  re  Ham- 
lin's Estate,  133  Wis.  140,  113  N. 
W.  411.  See  Post  v.  Compau, 
42  Mich.  90. 

62.  Kingdon  v.  Nottle,  1  Maule 
&  S.  355;  King  v.  Jones,  5  Taunt. 
418,  Kingdon  v.  Nottle,  4  Maule 
&  S.  53. 

63.  See  Rawle,  Covenants.  §§ 
208,  212;  1  Smith's  Leading 
Cases,  Amer.  notes,  p.  221;  4 
Kent,  Comm.  472;  editorial  note 
15  Harv.  Law  Rev.  150.  Com- 
pare note  6    Mich.  Law  Rev.  254. 


§  45G]  Transfer  Inter  Vivos.  1721 

result  has  been  attained  on  the  theory  that  the  right  of 
action  for  the  breach  which  immediately  occurs  is 
transferred  by  the  covenantee's  subse(juent  convey- 
ance, unless  a  contrary  intention  appears,  so  as  to 
enable  the  transferee  to  bring  suit  on  the  covenant, 
either  in  his  own  name,''"'  or  in  that  of  the  covenantee.*^* 
Occasionally  a  statute  specifically  provides  for  the  run- 
ning of  such  covenants.^*^' 

A  covenant  for  further  assurance  is  not  regarded 
as  broken  until  damage  has  been  caused  by  refusal  to 
furnish  the  assurance,  and  there  is  consequently  a 
right  of  action  on  such  covenant  in  favor  of  one  to  whom 
the  land  passes  before  such  refusal,'^'" 

The  right  of  a  remote  grantee  to  sue  upon  a  cove- 
nant of  title  as  running  with  the  land  is  not  affected  by 
the  fact  that  he  also  has  a  right  of  action  on  a  covenant 
made  directly  with  himself  by  his  immediate  grantor.*'^ 

In  order  to  avoid  the  possibility  of  two  or  more 
judgments  against  the  covenantor  on  account  of  the 
same  breach  in  favor  of  successive  owners  of  the  land, 
the  rule  has  been  laid  down  and  generally  adopted  that 
neither  the  covenantee  nor  a  subsequent  owner,  after 
parting  with  the  land,  can  recover  on  the  covenant 
until  he  has  himself  been  compelled  to  pay  damages  on 

64.  Tucker  v.  McArtliur,  103  suit  on  a  covenant  against  In- 
Ga.  409,  30  S.  E.  283;  Security  cumbrances  in  the  name  of  the 
Bank  of  Minnesota  v.  Holmes,  assignor,  and  the  difficulties  of 
65  Minn.  531,  60  Am.  St.  Rep.  pleading  therein,  see  Rawle,  Cov- 
495,    68    N.    W.    113;    Kimball    v.  enants,  §  227. 

Bryant,  25  Minn.  496;   Coleman  v.  66.     Rawle,  Covenants,  §  211. 

Lucksinger,  224  Mo.  1,  123  S.  W.  67.     Rawle,    Covenants,    §    230; 

441;     Geiszler    v.    De    Graaf,    166  Bennett    v.    Waller,    23    111.    97; 

N.  Y.   339,   82  Am.   St.   Rep.   659,  Collier    v.    Gamble,    10    Mo.    467; 

59   N.   E.   993;    Hall  v.   Paine,    14  Colby  v.  Osgood,  29  Barb.  (N.  Y.) 

Ohio     St.     417.       See     Arnold     v.  339. 

Joines,  50  Okla.  4,  150  Pac.  130.  68.     Withy  v.  Mumford,  5  Cow. 

65.  Rawle,  Covenants,  §  226.  (N.  W.)  137,  607;  Markland  v. 
See  Peters  v.  Bowman,  98  U.  S.  Crump,  18  N.  C.  101,  27  Am.  Dec. 
59,  25  L.  Ed.  91;  Newman  v.  101,  27  Am.  Dec.  230;  Rawle, 
Sevier,    134    111.    App.    544;     Cole  Covenants,  §  215. 

v.  Kimball,   52  Vt.   643.     As  to  a 


1722 


Real,  Property. 


[§  457 


his  own  covenant,  in  favor  of  one  claiming  under  him, 
this  being  regarded  as  tantamount  to  an  eviction."^ 

The  covenantee  or  other  owner  of  the  land  cannot, 
unless  in  special  cases,  after  having  conveyed  the  land, 
release  the  covenant,  so  as  to  affect  the  right  of  his 
grantee  to  sue  thereon,'^^  and  it  has  been  suggested  that 
such  a  release  by  the  covenantee,  even  though  made  by 
him  while  owner  of  the  land,  does  not  affect  the  right 
of  action  in  favor  of  a  subsequent  transferee  of  the 
land  who  takes  without  notice,  actual  or  constructive, 
of  the  release. '^^ 

V.       ExECUTIOISr    OF    THE    CONVEYANCE. 

§  457.  Signing.  At  common  law,  a  written  trans- 
fer of  land  was  always  sealed,  but  not  signed.  In 
England,  the  better  oinnion  is  that  the  requirement  in 
the  Statute  of  Frauds  that  the  writing  be  signed  does 
not   apply  to   a  sealed  instrument.''^     In   this   country. 


69.  Booth  V.  Starr,  1  Conn. 
244,  6  Am.  Dec.  233,  Redwine 
V.  Brown,  10  Ga.  311;  Thompson 
V.  Richmond,  102  Me.  335,  66 
Atl.  649;  Wheeler  v.  Sohier,  3 
Cush.  (Mass.)  222;  Simonds  v. 
Diamond  Match  Co.,  159  Mich. 
241,  123  N.  W.  1132;  AUis  v. 
Foley,  126  Minn.  14,  147  N.  W. 
670;  Chase  v.  Weston,  12  N.  H. 
413;  Withy  v.  Mumford,  5  Cow. 
(N.  Y.)  137;  Markland  v.  Crump, 
18  N.  C.  94,  27  Am.  Dec.  230; 
Clement  v.  Bank  of  Rutland,  61 
Vt.  298,  4  L.  R.  A.  425,  17  Atl. 
717. 

70.  Abby  v.  Goodrich,  3  Day 
(Conn.)  433;  Claycomb  v.  Mon- 
ger, 51  111.  373;  Crooker  v.  Jewell, 
29  Me.  527;  Chase  v.  Weston,  12 
N.  H.  413. 

71.  See  Claycomb  v.  Munger, 
51  111.  373;    Susquehanna  &  Wyo- 


ming Valley  Railroad  &  Coal  Co. 
V.  Quick,  61  Pa.  St.  339;  Field 
V.  Suell,  4  Cush.  (Mass.)  504. 
Contra,  see  Littlefield  v.  Getchell, 
32  Me.  392. 

72.  Cherry  v.  Heming,  4  Exch. 
631;  Cooch  v.  Goodman,  2  Q.  B. 
580,  597;  Aveline  v.  Whisson,  4 
Man.  &  G.  801;  3  Preston,  Ab- 
stracts, 61;  Challis,  Real  Prop. 
(3rd  ed.)  404.  The  statute  in 
terms  (29  Car.  II.  c.  3,  §  1) 
provides  that  all  leases,  estates, 
interests  of  freehold,  terms  of 
years,  etc.,  "made  or  created  by 
livery  and  seisin  only,  or  by 
parol,  and  not  put  in  writing, 
and  signed  by  the  parties  so  mak- 
ing or  creating  the  same,  or  their 
agents  thereunto  lawfully  author- 
ized by  writing,  shall  have  the 
force  and  effect  of  leases  or 
estates  at  will  only." 


§  457] 


Traistsfer  Inter  Vivos. 


1723 


however,  a  state  statute  requiring  a  signed  writing  for 
tlie  transfer  of  an  interest  in  land  has  been  construed  as 
requiring  the  writing  to  be  signed,  although  it  be 
sealed/''  In  the  absence  of  a  statutory  requirement 
that  the  instrument  be  "subscribed"  by  the  grantor,  the 
signature  may,  it  has  been  held,  be  in  any  part  thereof."^ 

The  signing  may  be  by  mark,  although  the  person 
so  signing  is  able  to  write,' ^  or  may  be  by  the  hand  of 
another  person  in  the  grantor's  presence. '^'^  Even  a 
signature  by  another,  made  out  of  the  grantor's  pres- 
ence,"^^  is  sufficient  if  adopted  by  the  grantor,  as  when 
he  subsequently  acknowledges  or  delivers  the  instru- 
ment as  his  act  and  deed. 

When  the  conveyance  purports  to  be  by  more  than 
one  grantor,  but  all  the  grantors  do  not  sign,  the  sig- 
natures of  those  that  do,  followed  by  delivery  by  them, 


73.  Goodman  v.  Randall,  44 
Conn.  321;  Shlllock  v.  Gilbert,  23 
Minn.  386;  Mutual  Benefit  Life 
Ins.  Co.  V.  Brown,  30  N.  J.  Eq. 
193;  Isham  v.  Bennington  Iron 
Co.,  19  Vt.  230;  Adams  v.  Med- 
sker,   25  W.  Va.   127. 

74.  McConnell  v.  Brillhart.  17 
111.  354,  65  Am.  Dec.  661;  Smith 
V.  Howell,  11  N.  J.  Eq.  349; 
Devereux  v.  McMahon,  108  N.  C. 
134,  12  L.  R.  A.  205,  12  S.  E. 
902;  Saunders  v.  Hackney,  10  Lea 
(Tenn.)  194;  Newton  v.  Emerson, 
66  Tex.   142. 

75.  Meazels  v.  Martin,  93  Ky. 
50,  18  S.  W.  1028;  Devereux  v. 
McMahon,  108  N.  C.  134,  12  L. 
R.  A.  205;  Truman  v.  Lore's 
Lessee,  14  Ohio  St.  144;  Mackay 
V.  Easton,  19  Wall.  (U.  S.)  619, 
22  L.  Ed.  211. 

76.  Lewis  v. .  Watson,  98  Ala. 
497,  22  L.  R.  A.  297,  39  Am.  St. 
Rep.  82,  13  So.  570;  Jansen  v. 
McCahlll,  22  Cal.  563,  83  Am.  Dec. 


84;  Middlesboro  Waterworks  v. 
Neal,  105  Ky.  586,  49  S.  W.  428; 
Bird  V.  Decker,^64  Me.  550;  Gard- 
ner V.  Gardner,  5  Cush.  (Mass.) 
483,  52  Am.  Dec.  740;  McMurtry 
V.  Brown,  6  Neb.  368;  Mutual 
Benefit  Life  Ins.  Co.  v.  Brown, 
30  N.  J.  Eq.  193;  Lee  v.  Parker, 
171  N.  C.  144,  88  S.  E.  217;  Hays 
V.  Hays,  6  Pa.  St.  368. 

77.  McClendon  v.  Equitable 
Mortgage  Co.,  122  Ala.  384.  122 
So.  30;  O'Neal  v.  Judsonia  State 
Bank,  111  Ark.  589.  164  S.  W. 
295;  Chivington  v.  Colorado 
Springs  Co.,  9  Colo.  597;  Ford  v. 
Ford,  27  App.  D.  C.  401;  Reinhart 
V.  Miller,  22  Ga.  402,  68  Am.  Dec. 
506:  Hailey  First  Nat.  Bank  v. 
Glenn.  10  Idaho,  224.  109  Am. 
St.  Rep.  204;  Kerr  v.  Russell. 
Nye  V.  Lowry,  82  Ind.  316; 
69  111.  666,  18  Am.  Rep.  634; 
Clough  V.  Clough,  73  Me.  487,  40 
Am.  Rep.  386;  Bartlett  v.  Drake, 
100    Mass.    174,    97    Am.    Dec.    92; 


1724  Eeal  Propeety.  [§  458 

will  be  sufficient  to  divest  their  interest,  '^^  unless  their 
delivery  was  conditional  upon  signature  by  the  others."^ 

§  458.  Sealing — Necessity.  At  common  law,  the 
only  recognized  mode  of  authenticating  a  written  in- 
strument was  by  sealing,  and  consequently  any  con- 
veyance in  use  at  the  present  day  which  takes  effect  by 
the  common  law,  such  as  a  grant  of  a  right  in  another's 
land,  or  a  release,  must  be  under  seal,  in  the  absence 
of  a  statutory  provision  to  the  contrary.^*' 

In  a  number  of  the  states,  by  express  provision  of 
statute,  seals  are  no  longer  necessary,  and  the  presence 
of  a  seal  on  a  conveyance  does  not  affect  the  acquisi- 
tion of  rights  thereunder.^^  In  other  states  there  is  an 
express  requirement  that  a  transfer  of  an  interest  in 
land  shall  be  under  seal.^- 

Since,  after  the  passage  of  the  Statute  of  Uses,  a 
conveyance  by  bargain  and  sale  might  be  oral,  the 
mere  paj^ment  of  a  consideration  being  sufficient  to 
raise  a  use,  which  the  statute  would  execute,^^  and  since 
moreover,  the  Statute  of  Enrollments,  passed  in  recog- 
nition of  this  fact,  and  requiring  a  bargain  and  sale 
to   be   by   writing   under    seal   and   enrolled,   has   been 

Conlan    v.    Grace,    36    Minn.    276;  Fuhr  v.  Dean,  26  Mo.  116,  69  Am. 

Pierce  v.   Hakes,  23   Pa.   St.  231;  Dec.    484;    Huff    v.    McCauley,    53 

Newton  v.  Emerson,  66  Tex.  142;  Pa.    St.    206,    91    Am.    Dec.    203; 

78.  Colton  V.  Leavey,  22  Cal.  Cagle  v.  Parker,  97  N.  C.  271,  2 
496;    Jackson   v.    Sanford,    19   Ga.  S.  E.  76. 

14;    Scott  V.  Whipple,  5  Me.  336;  81.     1    Stimson's   Am.    St.   Law, 

Harrelson  v.   Sarvis,  39   S.  C.  14,  §     1564     (B).       See     Wisdom     v. 

17  S.  E.  368.  Reeves,   110   Ala.   418,   18   So.   13; 

79.  Johnson  v.  Brook,  31  Miss.  Pierson  v.  Armstrong,  1  Iowa. 
17;  Arthur  v.  Anderson,  9  Rich.  283,  63  Am.  Dec.  440;  Jerome  v. 
(S.  C.)  234;  Haskins  v.  Lombard,  Ortman,  66  Mich.  668;  Gibbs  v. 
16  Me.  140,  33  Am.  Dec.  645.  McGuire,  70  Miss.  646,  12  So. 
See  Post,  §  462.  829. 

80.  Somerset  v.  Fogwell,  5  82.  1  Stimson's  Am.  St.  Law, 
Barn.    &   C.    875;    Wood    v.    Lead-  §  1564    (A). 

bitter,  13  Mees.   &  W.   838;    Hew-  83.     Challis,     Real     Prop.     419, 

lins    V.    Shippam,    5    Barn.    &    C.  420;    Williams,   Real    Prop.    (18th 

229;    Arnold  v.   Stevens,   24   Pick.  Ed.)    196;   1  Hayes,  Conveyancing 

(Mass.)     109,    35    Am.    Dec.    305;  (5th  Ed.)   76.     See  ante,  §  428. 


§  458]  Transfer  Inter  Vivos.  1725 

generally  regarded  as  not  in  force  in  this  country,  it 
would  seem  that  a  seal  is  unnecessary,  in  the  absence 
of  a  state  statute  to  the  contrary,  in  the  case  of  a  con- 
veyance taking  effect  under  the  Statute  of  Uses  or  un- 
der a  state  statute.  In  a  number  of  the  states,  ho^vever, 
it  has  been  decided  or  assumed  that,  even  in  the  absence 
of  a  local  statutory  requirement,  a  seal  is  necessary, 
this  view  being  sometimes  based  upon  the  assumption 
that  a  conveyance  of  land  is  necessarily  a  **dced," 
which,  since  a  deed  means  a  sealed  instrument,  assumes 
the  very  point  in  question.^* 

Even  when  a  seal  is  necessary  to  convey  the  legal 
title,  an  unsealed  conveyance  will  be  etfective  in  equity, 
it  being  there  regarded  as  a  contract  for  a  conveyance, 
specifically  enforcible.*^ 

Sufficiency.      At   common   law,    an    instrument 

was  sealed,  usually,  at  least,  by  impressing  some  device 
upon  wax,  which  was  made  to  adhere  to  the  paper  ;S^  but 
at  the  present  day  an  impression  made  by  stamping 
upon  the  paper  on  which  the  instrument  is  written,''^  or 

84.  Floyd  v.  Ricks,  14  Ark.  Nat.  Bank  of  North  Bend  v.  Gage, 
286,  58  Am.  Dec.  374;  Barrett  v.  71  Ore,  .373,  142  Pac.  539;  Brink- 
Hinckley,  270  111.  298,  110  N.  E.  ley  v.  Bethel,  9  Heisk.  (Tenn.) 
359;  Osby  v.  Reynolds,  260  111.  786;  Frost  v.  Wolf,  77  Tex.  455, 
576,  103  N.  E.  556;  Switzer  v.  19  Am.  St.  Rep.  761;  Garten  v. 
Knapps,  10  Iowa,  72.  74  Am.  Dec.  Layton,  76  W.  Va.  63,  84  S.  E. 
375;    McLaughlin    v.    Randall.    66  1058. 

Me.    226;    Colvin    v.    Warford,    20  86.     3  Co.  Inst.  169. 

Md.    357;     Robinson    v.    Noel,    49  87.     Sugden,  Powers    (8th  Ed.) 

Mi.ss.    253;    Jackson    v.    Hart,    12  232;    Pillow   v.    Roberts,    13   How. 

Johns.     (N.    Y.)     77.      In    Under-  (U.    S.)    472;    Pillow    v.    Roberts, 

wood  V.   Campbell,   14   N.  H.  393,  12  Ark.  822;  Hendee  v.  Pinkerton, 

it    seems    to    be    considered    that  14    Allen    (Mass.)    381;    Allen    v. 

the   Statute  of  Enrollments  is   in  Sullivan    R.    Co.,    32    N.    H.    446; 

force   in   New   Hampshire.  Corrigan     v.     Trenton     Delaware 

85.  Switzer  v.  Knapps,  10  Falls  Co.,  5  N.  J.  Eq.  52.  Contra. 
Iowa,  72,  74  Am.  Dec.  375;  Jewell,  Bank  of  Rochester  v.  Gray,  2  Hill 
V.  Harding.  72  Me.  124;  McCarley  (N.  Y.)  227;  Warren  v.  Lynch.  5 
V.  Tippah  County  Sup'rs,  58  Johns.  (N  .Y.)  239.  See  1  Am. 
Miss.  483;  Wadsworth  v.  Wendell,  Law  Rev.   at  p.   638. 

5   Johns.   Ch.    fN.  Y.)    224;    First 
R.  P.— 34 


1726 


Real  Property. 


[§  458 


even  a  paper  wafer  or  piece  of  paper  gummed  on  the 
face  of  the  instrument,^^  is  usually  regarded  as  sufficient. 
By  statute  in  many  states,  a  mere  scroll  or  any  other  de- 
vice marked  on  the  paper  on  which  the  conveyance  is 
written  is  sufficient,^^  and  in  other  states  a  similar  view 
iias  been  taken,  in  the  absence  of  any  exjjress  statute.^"^ 
So,  the  writing  of  the  word  "Seal"  in  connection  with 
the  signature  has  been  regarded  as  a  sufficient  sealing.^^ 
A  recital  in  the  instrument  that  it  is  sealed  is  not 
necessary  in  order  to  make  the  sealing  effective,  if 
there  is  actually  a  seal.^-  In  a  few  decisions,  however, 
a  different  view  has  been  taken  w^hen  the  alleged  seal 
consisted  of  merely  a  scroll  or  other  device  which  did 
not  of  itself  show  that  it  was  affixed  as  a  seal.^^  A 
statement  in  the  instrument  that  it  is  sealed  will  not  be 
sufficient  as  a  substitute  for  a  seal.^^ 


88.  Tasker  v.  Bartlett,  5  Cush. 
(Mass.)  359;  Turner  v.  Field,  44 
Mo.  382;  Corrigan  v.  Trenton 
Delaware  Falls  Co.,  5  N.  J.  Eq. 
52. 

89.  1  Stimson's  Am.  St.  Law, 
§    1565. 

90.  Trasher  v.  Everhart.  3  Gill. 
&  J.  (Md.)  246:  Hudson  v. 
Poindexter,  42  Miss.  304;  Hack- 
er's Appeal,  121  Pa.  St.  192; 
Jones  V.  Logwood,  1  Wash.  (Va.) 
42.  Contra,  McLaughlin  v.  Ran- 
dall, 66  Me.  226;  Bates  v.  Boston 
&  N.  Y.  C.  R.  Co.,  10  Allen 
(Mass.)  251;  Douglas  v.  Oldham, 
6  N.  H.  150;  Warren  v.  Lynch, 
5   Johns.    (N.   Y.)    239. 

91.  Cochran  v.  Stewart,  57 
Minn.  499,  59  N.  M.  543;  White- 
ley  V.  Davis'  Lessee,  1  Swan 
(Tenn.)  333.  The  word  "Seal" 
within  a  scroll  has  been  decided 
to  be  sufficient  in  some  cases. 
Hastings  v.  Vaughn.  5  Cal.  315; 
Miller  v.   Binder,   28  Pa.   St.   489; 


English  V.  Helms,  4  Tex.  228. 
Contra.  Beardsley  v.  Knight,  4 
Vt.    471. 

92.  Wing  V.  Chase,  35  Me. 
260;  Devereux  v.  McMahon,  108 
N.  C.  134.  12  L.  R.  A.  205,  12 
S.  E.  902;  Proprietors  of  Mill 
Dam  Foundry  Co.  v.  Hovey,  21 
Pick.  (Mass.)  417,  428;  Taylor 
V.  Glaser,  2  Serg.  &  R.  (Pa.)  502; 
Comyns,    Dig.    "Fait"    (A    2). 

93.  Bohannon  v.  Hough,  1 
Miss.  461;  Cromwell  v.  Tate's 
Ex'r,  7  Leigh  (Va.)  301,  30  Am. 
Dec.  506;  Corlies  v.  Vannote,  16 
N.  J.  L.  324;  Carter  v.  Penn,  4 
Ala.  140.  And  see  Buckingham  v. 
Orr,  6  Colo.  587.  Compare  Ash- 
well  V.  Ayres,  4  Grat.    (Va.)    283. 

94.  Armstrong  v.  Pearce,  5 
Harr.  (Del.)  551;  Deming  v.  Bul- 
litt, 1  Blackf.  (Ind.)  241;  Mc- 
Pherson  v.  Reese,  58  Miss.  749; 
Patterson  v.  Galliher,  122  N.  C. 
511.  29  S.  E.  773;  Taylor  v. 
Glaser,    2    Serg.   &   R.    (Pa.)    502; 


§  459]  Transfer  Inter  Vivos.  1727 

The  seal  need  not,  and  in  fact  usually  is  not,  affixed 
at  the  same  time  as  or  after  the  signing  of  the  instru- 
ment, it  being  sufficient  that  the  party  adopts,  expressly 
or  impliedly,  the  seal  already  placed  on  the  paper.^^ 
So,  each  of  the  parties  executing  the  instrument  need 
not  have  a  separate  seal,  one  seal  being  sufficient  if 
adopted  by  all  the  j^arties  signing.**^ 

§  459.  Witnesses.  In  some  states  witnesses,  usual- 
ly two  in  number,  are  necessarj''  in  order  to  make  a 
conveyance  valid  as  between  the  parties  thereto.  In 
other  states,  no  witnesses  are  required,  while  in  some, 
though  witnesses  are  not  necessary  to  render  the  con- 
veyance valid  as  between  the  parties,  they  are  necessary 
for  the  purpose  of  proving  the  deed  for  record,  in  the 
absence  of  an  acknowledgment  by  the  grantor.^"^ 

The  witness  need  not  be  present  at  the  actual 
signing  of  the  instrument  by  the  grantor,  provided  the 
latter  acknowledges  to  him  that  it  is  his  act,  and  ex- 
l^ressly  or  impliedly  requests  him  to  attest  the  instru- 
ment.*^^ The  witnesses  must  sign  the  instrument,  their 
signatures  being  usually  placed  under  a  clause,  "Signed, 
sealed,  and  delivered  in  the  presence  of"  or  some  other 
expression  which  serves  to  show  the  purpose  of  their 
signature  being  used.**^ 

Mitchell  V.  Parham,  Harp.  (S.  C.)  521;    Bowman   v.   Robb,   0  Pa.   St. 

3;     Davis    v.    Judd,    6    Wis.    85;  302;  Lambden  v.  Sharp,  9  Humph. 

Burnette   v.    Young,    107   Va.    184,  (Tenn.)    224;   Yale  v.  Zanders,  4 

95.  Sheppard's  Touchstone,  54,  Wis.    96. 

57;     Reg.    v.    Inhabitants    of    St.  97.     1   Stimson's   Am.    St.   Law, 

Paul,   7   Q.   B.   232;    Ball   v.    Dun-  §   1566. 

sterville,  4  Term  R.  313;   Ash  well  98.     Jackson  v.  Phillips,  9  Cow. 

V.   Ayres,   4   Grat.    (Va.)    283.  (N.    Y.)     94.    113;    Tate    v.    Law- 

96.  Carter  V.  Chandron,  21  Ala.  rence,  11  Heisk.  (Tenn.)  503: 
88;  Davis  v.  Burton,  4  111.  41,  36  Clements  v.  Pearce,  63  Ala.  284; 
Am.  Dec.  511:  Bradford  v.  Ran-  Mulloy  v.  Ingalls,  4  Neb.  115. 
dall,  5  Pick.  (Mass.)  496;  Luns-  See  Little  v.  White,  29  S.  C. 
ford  V.  La  Motte  Lead  Co.,  54  170;  Poole  v.  Jackson,  66  Tex. 
Mo.  426;  Northumberland  v.  Cob-  380,  1  S.  W.  75;  1  Stimson's  Am. 
leigh,    59    N.    H.    250;    Pickens    v.  St.  Law,  §  1567. 

Rymer,  90  N.  C.  283,  47  Am.  Rep.  99.     The    signature   of   the    wit- 


1728 


Real  Peopbbty. 


[§  460 


The  statutes  liaA^e  usually  been  construed  as  re- 
quiring that  the  witness  be  competent,  at  the  time  of 
his  attestation  of  the  conveyance,  to  testify  in  regard 
to  its  execution  in  ease  of  litigation  between  the  parties, 
with  the  result  that  his  attestation  is  of  no  effect  for 
the  purpose  of  validating  the  conveyance,  if  he  is  not  so 
competent.  ^'2 

§  460.  Acknowledgment.  In  some  states  the  stat- 
ute requires  a  conveyance  to  be  acknowledged  by  the 
grantor  before  an  official  in  order  to  make  it  effective 
even  as  betw^een  the  parties,"  and  in  a  number  of  states 
an  acknowledgment  is  necessary  to  the  validity  of  a 
conveyance  by  a  married  woman.  More  usually,  how- 
ever, the  requirement  of  acknowledgment  is  imposed 
only  as  a  preliminary  to  the  record  of  a  conveyance, 
for  the  purpose  of  charging  a  subsequent  purchaser 
with  notice  thereof,^  Avith  the  result  that  the  record  of  a 


ness,  it  has  been  decided,  may  be 
by  mark.  Brown  v.  McCormick, 
28  Mich.  215;  Devereux  v.  Mc- 
Mahon,  102  N.  C.  284,  9  S.  E.  635. 

1-2.  So  it  has  been  held  that 
one  having  a  pecuniary  interest 
in  the  conveyance  is  disqualified. 
Winsted  Sav.  Bank  &  Building 
Ass'n  v.  Spencer,  26  Conn.  195; 
Child  V.  Baker,  24  Neb.  1'88. 
And  a  grantor  cannot  witness 
the  execution  of  the  instrument 
by  his  co-grantor.  Townsend  v. 
Downer,  27  Vt.  119. 

A  wife  or  husband  of  a  grant- 
or has  also  been  regarded  as 
disqualified.  Third  Nat.  Bank  of 
Chattanooga  v.  O'Brien,  94  Tenn. 
38,  28  S.  W.  293;  Johnston  v. 
Slater,  11  Grat.  (Va.)  321;  Cor- 
bett  V.  Norcross,  35  N.  H.  99. 
But  in  some  cases  it  has  been 
held  that  the  witness  need  not 
be    competent    to    testify    at    the 


time  of  its  execution,  provided  he 
can  testify  when  called  to  prove 
the  execution  in  court.  Frink 
V.  Pond,  46  N.  H.  125;  Doe  d. 
Johnson  v.  Turner,  7  Ohio,  216, 
pt.  2. 

3.  See  Lewis  v.  Herrera,  10 
Ariz.  74,  85  Pac.  245;  Parrott  v. 
Kumpf,  102  111.  423;  Hout  v.  Hout, 

20  Ohio  St.  119. 

4.  1  Stimson's  Am.  Stat.  Law, 
§   1570. 

5.  See  e  g.;  Green  v.  Abra- 
ham, 43  Ark.  420;  Lee  v.  Mur- 
phy, 119  Cal.  364,  51  Pac.  549; 
Edwards  v.  Thorn,  25  Fla.  222, 
5  So.  707;  New  England  Mort- 
gage Security  Co.  v.  Ober,  84  Ga. 
294,  10  S.  E.  625;  Harris  v.  Reed, 

21  Idaho,  364,  121  Pac.  780; 
Graves  v.  Graves,  6  Gray  (Mass.) 
391;  Thompson  v.  Scheid,  39 
Minn.  102,  12  Am.  St.  Rep.  619, 
38   N.   W.   801;    Ligon  v.   Barton, 


§  460]  Transfer  Inter  Vivos.  1729 

conveyance  not  properly  acknowledged  will  have  no 
such  effect."'  The  acknowledgment  has,  moreover,  in  a 
number  of  states,  the  effect  of  rendering  the  conveyance 
admissible  in  evidence  without  further  proof  of  its 
execution.^ 

Qualifications  cf  officer.    The  statute  ordinarily 


requires  the  acknowledgment  to  be  made,  if  within  the 
state,  before  a  judge,  clerk  of  court,  justice  of  the  peace, 
or  notary  public.  The  provisions  of  the  statutes  as  to 
acknowledgment  in  another  state  sometimes  provide 
that  it  may  be  taken  by  named  classes  of  officials  of  the 
latter  state,  sometimes  by  commissioners  of  deeds  ap- 
pointed for  such  state,  and  sometimes  by  any  officials  of 
the  other  state  authorized  by  the  statutes  of  such  state 
to  take  acknowledgments.  The  statutes  also  contain, 
almost  invariably,  specifie  provisions  as  to  the  officials 
who  may  take  acknowledgments  in  foreigTi  countries 
for  use  in  the  state  in  which  the  statute  is  passed. 

It  is  generally  agreed  that  an  officer  who  is  benefi- 
cially interested  in  the  transaction  cannot  take  an 
acknowledgment.'^  Consequently  the  grantee  cannot 
take  the  grantor's  acknowledgment,^  nor  can  either  the 

88   Miss.   135,   40   So.   555;    Finley  There  is  authority  for  the  view 

V.    Babb,    173    Mo.    257,    73    S.    W.  that   interest   does   not   disqualify 

180;    Brown  v.   Manter,   22   N.   H.  if   there    is    no    other   officer   who 

468;    Bradley   v.    Walker,    138    N.  can     take     the     acknowledgment. 

Y.    291,    33    N.    E.    1079;    Geneseo  Stevenson  v.   Brasher,  90  Ky.  23. 

First  Nat.  Bank  v.  National  Live  13  S.  W.  242;   Lewis  v.  Curry,  74 

Stock  Bank,  13  Okla.  719,  76  Pac.  Mo.  49.    Contra,  semhle,  Hammers 

130;      Watts     v.     Whetstone,     79  v.  Dole,  61  111.  307. 

S.  C.  357,  60  S.  E.  703.  8.     Lee     v.     Murphy,     119     Cal. 

6.  1  Stimson's  Am.  St.  Law,  364,  51  Pac.  549;  Brereton  v. 
§  1572;  4  Wigmore,  Evidence,  §  Bennett,  15  Colo.  254;  Hogans 
1676.  V.   Carruth,    18   Fla.   587;    Florida 

7.  But  in  Tennessee,  apparent  Savings  Bank  &  Real  Estate 
ly,  interest  does  not  disqualify  Exchange  v.  Rivers,  36  Fla.  575, 
one  to  take  an  acknowledgment.  18  So.  850;  Hammers  v.  Dole, 
Cooper  V.  Hamilton  Perpetual  61  111.  307;  West  v.  Krebaum,  88 
Bldg.  etc.  Ass'n,  97  Tenn,  285,  33  111.  263;  Wilson  v.  Traer,  20 
L.  R.  A.  338,  56  Am.  St.  Rep.  Iowa,  231;  Greenlee  v.  Smith,  4 
795,   37   S.  W.   12.  Kan.     App.     733,     46     Pac.     543; 


1730 


Real  Property. 


[§  460 


trustee  in,^  or  a  beneficiary  under/*'  a  deed  of  trust 
take  the  acknowledgment  of  the  grantor  therein. 
Whether  one  grantor  can  take  the  acknowledgment  of 
his  cograntor  appears  to  be  uncertain.^ ^  By  the  weight 
of  authority  an  officer  is  disqualified  to  take  an  ac- 
knowledgment in  which  a  corporation  is  beneficially  in- 
terested if   he    is    a   stockholder   therein, ^^    but    not    if 


Beaman  v.  Whitney,  20  Me.  413; 
Laprad  v.  Sherwood,  79  Mich. 
520,  44  N.  W.  943;  W^asson  v. 
Connor,  54  Miss.  351;  Hainey 
V.  Alberry,  73  Mo.  427;  Amick  v. 
Woodworth,  58  Ohio  St.  86,  50  N. 
E.  437;  Hunton  v.  Wood,  100 
Va.    54,    43    S.    E.    186. 

But  in  Murray  v.  Tulare  Irri- 
gation Co.,  120  Cal.  311,  49  Pac. 
463,  52  Pac.  586,  it  was  held 
that  an  acknowledgment  taken 
by  one  of  several  grantees, 
each  of  whom  took  "a  separate 
and  defined  interest"  was  good  as 
to  all  the  grantees  except  that 
one.  And  in  Darst  v.  Gale,  83 
111.  136,  a  substantially  similar 
view  was  taken  as  to  an  acknowl- 
edgment before  one  of  several 
trustees  to  whom  a  mortgage 
was   made. 

9.  Muense  v.  Harper,  70  Ark. 
309,  67  S.  W.  869;  Darst  v.  Dale, 
83  111.  136;  Holden  v.  Brimage, 
72  Miss.  228,  18  So.  383;  German 
American  Bank  v.  Carondelet 
Real  Estate  Co.,  150  Mo.  570, 
51  S.  W.  691;  Lance  v.  Tainter, 
137  N.  C.  249,  49  S.  E.  211; 
Rothschild  v.  Daugher,  85  Tex. 
332,  16  L.  R.  A.  719,  34  Am. 
St.  Rep.  811,  20  S.  W.  142;  Bow- 
den  v.  Parrish,  86  Va.  67,  19 
Am.  St.  Rep.  873,  9  S.  E.  616; 
Hunton  v.  Wood,  101  Va.  54. 
43    S.    E.    186.     Contra,   Weidman 


V.    Templeton,    (Tenn.    Ch.   App.) 
61  S.  W.  102. 

10.  Wasson  v.  Connor,  54  Miss. 
351;  Long  v.  Crews,  113  N.  Car. 
256,  18  S.  E.  499;  Baxter  v. 
Howell,  7  Tex.  Civ.  App.  198,  26 
S.  W.  453. 

11.  That  he  can  do  so,  see 
Greve  v.  Echo  Oil  Co.,  8  Cal. 
App.  275,  96  Pac.  904.  Contra, 
People  V.  Railroad  Comm'rs,  105 
N.  Y.  App.  Div.  273,  93  N.  Y. 
Supp.  584  (certificate  of  incor- 
poration). 

12.  Hayes  v.  Southern  Home 
Bldg,  etc.,  Ass'n,  124  Ala.  663, 
82  Am.  St.  Rep.  216,  26  So.  527; 
Ogden  Bld'g,  etc.,  Ass'n  v.  Mensch, 
196  111.  554,  63  N.  E.  1049; 
Steger  v.  Travelling  Men's  Bldg 
etc.,  Ass'n,  208  111.  236,  100  Am. 
St.  Rep.  225,  70  N.  E.  236;  Kothe 
v.  Krag  Reynolds.  20  Ind.  App. 
293,  50  N.  E.  594;  Smith  v. 
Clark,  100  Iowa,  605,  69  N.  W. 
1011;  Wilson  v.  Griess,  64  Neb. 
792,  90  N.  W.  866;  Bexar  Bldg. 
etc.,  Ass'n  v.  Heady,  21  Tex.  Civ. 
App.  154,  50  S.  W.  1079,  57  S.  W. 
583;  Boswell  v.  Laramie  First 
Nat.  Bank,  16  Wyo.  161,  92  Pac. 
624. 

That  a  stockholder  Is  not  dis- 
qualified to  take  the  acknowl- 
edgment of  a  mortgage  to  the 
corporation,  see  Read  v.  Toledo 
Loan    Co.,    68    Ohio    St.    280,    62 


§  460] 


Transfer  Ixter  Vivos. 


1731 


he  is  a  corporate  officer  and  not  a  stockholder. ^"^  One  is 
not  disqualified  merely  because  he  is  the  attorney/^  or 
the  agent  or  employee,  of  an  interested  party.^^  Nor  is 
one  disqualified  to  take  an  acknowledgment  by  the  fact 
that  he  is  related  to  an  interested  party/^  and  even 
the  husband  of  the  grantee,  it  has  been  decided,  may 
take  the  grantor's  acknowledgment.^" 

Duties   of  officer.     The  officer,   in   taking   the 


acknowledgment,  must  comply  with  all  the  requirements 
of  the  statute.  The  statute  invariably  requires  him  to 
satisfy  himself  as  to  the  identity  of  the  person  making 
the  acknowledgment,  and  occasionally  provides  the  man- 
ner in  which  he  shall  so  satisfy  himself,  as  by  sworn 
witnesses.  In  the  absence  of  any  prescribed  method  of 
satisfying  himself  of  the  grantor's  identity,  the  suffi- 
ciency of  the  acknowledgment  cannot  be  questioned  be- 
cause the  officer  acts  merely  on  an  introduction  bv  a 


L.  R.  A.  338,  56  Am.  St.  Rep. 
663,  67  N.  E.  29.  And  this 
though  the  stockholder  was  also 
an  officer  of  the  corporation 
Keene  Guaranty  Sav.  Bank  v. 
Lawrence,  32  Wash.  572;  Cooper 
V.  Hamilton  Perpetual  Building 
&  Loan  Ass'n,  97  Tenn.  285,  33 
L.  R.  A.  338,  56  Am.  St.  Rep. 
795,    37    S.    W.    12. 

13.  Woodland  Bank  v.  Ober- 
haus,  125  Cal.  320,  57  Pac.  1070; 
Florida  Sav.  Bank  v.  Rivers,  36 
Fla.  577.  18  So.  850;  Horbach 
V.  Tyrrell,  48  Neb.  514,  37  L.  R. 
A.  434,  67  N.  W.  485;  Ogden 
Bldg  &  Loan  Ass'n  v.  Mensch, 
196  111.  554,  89  Am.  St.  Rep. 
330,  63  N.  E.  1049;  Bardsley 
V.  German  American  Bank,  113 
Iowa,  216,  84  N.  W.  1041;  Keene 
Guaranty  Sav.  Bank  v.  Lawrence, 
32  Wash.  572,  73  Pac.  680. 

14.  Brown   v.    Parker,   97    Fed 
446.    38    C.    C.    A.    261;    Bierer    v. 


Fretz,  32  Kan.  329,  4  Pac.  284; 
Helena  First  Nat.  Bank  v.  Rob- 
erts, 9  Mont.  323,  23  Pac.  718; 
Havemeyer  v.  Dahn,  48  Neb.  536, 
33  L.  R.  A.  332,  58  Am.  St.  Rep. 
706,   67   N.  W.   489. 

15.  Castetter  v.  Stewart,  70 
Neb.  815,  98  N.  W.  34;  Wachovia 
Nat.  Bank  v.  Ireland,  122  N.  C. 
571,  29  S.  E.  835;  Penn  v.  Gar- 
vin,  56   Ark,    511,   20    S.   W.   410. 

16.  Helena  First  Nat.  Bank  v. 
Roberts,  9  Mont.  323,  23  Pac. 
718;  Lynch  v.  Livingston,  6 
N.  Y.  422;  McAllister  v.  Purcell, 
124  N.  C.  262,  32   S.  E.   715. 

17.  Remington  Paper  Co.  v. 
O'Dougherty,  81  N.  Y.  474;  Nixon 
V.  Post,  13  Wash.  181,  43  Pac. 
23;  Kimball  v.  Johnson,  14  Wis. 
674  (mortgage).  But  the  con- 
trary has  also  been  decided,  in 
cases  in  which  the  grantor  whose 
acknowledgment  was  taken  was 
a     married     woman.       Jones     v. 


1732  Real  Property.  [§  460 

third  person,^''  however  this  may  affect  the  question  of 
liis  liability  for  a  false  certificate  in  this  regard.^^  If 
the  person  making  the  acknowledgment  speaks  only  a 
foreign  language,  the  officer  should  employ  an  interpre- 
ter.2o 

Certificate,     The  stakite  almost  invariably  re- 


quires the  officer  M-ho  takes  the  acknowledgment  to 
write  upon,  or  attach  to,  the  instrument,  a  certificate 
of  acknowledgment,  that  is,  a  statement,  under  his 
hand,  and  ordinarily  under  his  seal,  showing  that  the 
acknowledgment  was  made.  The  certificate  must,  it  is 
generally  recognized,  show  a  compliance  with  the  statu- 
tory requirements,  and  if  the  statute  contains  specific 
provisions  as  to  what  the  certificate  must  show,  an 
omission  to  comply  therewith  renders  it  invalid.  It 
must,  in  most  jurisdictions,  show  the  official  character 
of  the  officer,  that  the  acknowledgment  was  in  fact  made 
before  him  by  the  party  w^ho  executed  the  instrument, 
and  that  such  person  was  personally  known  to  him,  or 
that  he  was  satisfied  or  informed  as  to  the  identity  of 
such  person.  But  the  certificate  is  to  be  construed  with 
reference  to  the  instrument  to  which  it  is  appended, 
and  consequently  omissions  or  errors  therein,  not  per- 
taining to  the  fact  of  acknowledgment  itself,  may  usual- 
ly be  corrected  by  reference  to  the  language  of  the 
conveyance.- 1     And,   generally   speaking,   a    substantial 

Porter,    59    Miss.    628;    Silcock    v.  Cal.    486:    Waltee    v.    Weaver,    57 

Baker,    25    Tex.    Civ.    App.     508,  Tex.    569. 

61   S.  W.  939.  But    in    Micliigan    an    acknowl- 

18.  Nippel  V.  Hammond,  4  edgment  tlirough  an  Interpreter 
Col.  211;  Wood  v.  Bach,  54  Barb.  has  been  held  to  be  insufficient. 
(N.  y.)  1.34.  See  Lindley  v.  Dewey  v.  Campau,  4  Mich.  565 
Lindley,  92  Tex.  446,  49  S.  W.  Harrison  v.  Oakman,  56  Mich. 
573.  390,    23    N.    W.    164. 

19.  See  Barnard  v.  Schuler,  100  21.  Carpenter  v.  Dexter,  8 
Minn.  289,  110  N.  W.  966;  Hat-  Wall.  (U.  S.)  513;  Frederick  v. 
ton  v.  Holmes,  97  Cal.  208,  31  Wilcox,  119  Ala.  355,  72  Am.  St. 
Pac.    1131.  Rep.  925,   24   So.  582:    Summer  v. 

20.  Norton  v.  Meader,  4  Sawy.  Mitchell,  29  Fla.  179,  14  L.  R.  A. 
603;    De    Arnaz    v.    Escandon,    59  815,  30  Am.   St.  Rep.   106,   10   So. 


§  460] 


Transfer  Inter  Vivos. 


173:;^ 


comiDliance  with  the  statutory  requirement  is  sufficient, 
an  adherence  to  the  actual  language  of  the  statute  be- 
ing regarded  as  unnecessary.-^  Oral  evidence,  how- 
ever, is  not  admissible  in  order  to  prove  an  essential 
fact  which  was  by  mistake  omitted  from  the  certificate.-^ 
In  some  states,  by  statute,  the  certificate  is  merely 
prima  facie  evidence  of  the  facts  which  it  recites,  and 
its  falsity  may  be  shown  by  extraneous  evidence.^"*  In 
the  absence  of  such  a  statutory  provision,  a  certificate 
of  acknowledgment  is  usually  regarded  as  conclusive 
in  regard  to  the  matters  as  to  which  the  officer  is  re- 


562;  Milner  v.  Nelson,  86  Iowa. 
452,  53  N.  W.  405;  Kelly  v. 
Rosenstock,  45  Md.  389;  Bruns- 
■wick-Balke-Collender  Co.  v. 
Brackett,  37  Minn.  58,  33  N.  W. 
214;  Owen  v.  Baker,  101  Mo.  407. 
20  Am.  St.  Rep.  618;  Claflin  v. 
Smith,  15  Abb.  N.  Cas.  (N.  Y.) 
241;  Fuhrman  v.  London.  13 
Serg  &  R.  (Pa.)  386,  15  Am. 
Dec.  608. 

22.  Kelly  v.  Calhoun,  95  U. 
S.  710,  24  L.  Ed.  544;  Frederick 
V.  Wilcox,  119  Ala.  355,  72  Am. 
St.  Rep.  925;  Jacoway  v.  Gaiilt, 
20  Ark.  190;  Goode  v.  Smith,  8 
Cal.  581;  Wilson  v.  Russsii.  4 
Dak.  376,  31  N.  W.  645;  De- 
launey  v.  Burnett,  9  111.  454; 
Martin  v.  Davidson,  3  Bush 
(Ky.)  572;  Bennett  v.  Knowles, 
66  Minn.  4,  68  N.  W.  Ill;  Gross 
V.  Watts,  206  Mo.  373,  121  Am.  St. 
Rep.  662,  104  S.  W.  30;  Torrey 
V.  Thayer,  37  N.  J.  L.  339;  Ab- 
rams  v.  Rhoner,  44  Hun  511; 
Etheridge  v.  Ferebee,  31  N.  C. 
312;  Garton  v.  Hudson-Kimberly 
Pub.  Co.,  8  Okla.  631;  Jamison 
V.  Jamison,  3  Whart.  (Pa.)  457. 
31  Am.  Dec.  536:  Timber  v. 
Desparois,  18  S.  D.  587,  101  N. 
W.    879:     Hughes    v.    Powers.    99 


Tenn.  480,  15  Lea,  683;  Wilson 
V.  Simpson,  80  Tex.  279.  16  S. 
W.  40:  Welles  v.  Cole,  6  Gratt. 
(Va.)  645;  Bensimer  v.  Fell,  35 
W.  Va.  15,  29  Am.  St.  Rep.  774. 
12    S.    E.    1078. 

23.  Elliott  V.  Piersol's  Lessee. 
1  Pet.  (U.  S.)  328;  Cox  v.  Hol- 
comb,  87  Ala.  589.  13  Am.  St. 
Rep.  79;  Ennor  v.  Thompson,  46 
111.  214;  Barnett  v.  Shankleford, 
6  J.  J.  Marsh  (Ky.)  532,  22  Am. 
Dec.  100;  Willis  v.  Gattman,  53 
Miss.  721;  Salt  v.  Anderson,  71 
Neb.  826,  99  N.  W.  678;  Wynne 
V.  Small,  102  N.  C.  133,  8  S.  E. 
912;  Harty  v.  Ladd,  3  Ore.  353; 
Looney  v.  Adamson,  48  Tex.  619; 
Harrisonburg  First  Nat.  Bank  v. 
Paul,  75  Va.  594,  40  Am.  Rep. 
740. 

24.  See  Moore  v.  Hopkins,  83 
Cal.  270,  17  Am.  St.  Rep.  248; 
Tuten  V.  Gazan,  18  Fla.  751; 
Carver  v.  Carver,  97  Ind.  497; 
Peoples  Gas  Co.  v.  Fletcher,  81 
Kan.  76,  41  L.  R.  A.  N.  S.  1161. 
105  Pac.  34;  Ronier  v.  Conter.  53 
Minn.  171,  54  N.  VS^.  1052;  Pierce 
V.  Georger,  103  Mo.  540,  15  S.  W. 
848;  McKay  v.  Lasher,  121  N. 
Y.   477,   24   N.   E.   711. 


1734 


Eeal,  Propekty. 


[§  460 


quired  to  certify,^^  but  the  fact  that  there  was  no  ac- 
knowledgixieiit  whatever  may  be  shown  in  contradiction 
of  the  certificate.^^  As  between  the  parties,  moreover,  evi- 
dence is  always  admissible  to  show  that  the  acknowledg- 
ment was  obtained  by  fraud  or  imposition,  in  which  the 
grantee  participated,  or  of  which  he  knew,^'^  but  this  can- 
not be  shown  as  against  a  person  ignorant  of  the  f  raud,^^ 


25.  Grider  v.  American  Free- 
hold Land  Mortg.  Co.,  99  Ala. 
281,  42  Am.  St.  R&p.  58;  Petty 
V.  Grlsard,  45  Ark.  117;  Ford  v. 
Ford,  27  App.  D.  C.  401,  6  L.  K. 
A.  (N.  S.)  442;  Graham  v. 
Anderson,  42  111.  515,  92  Am.  Dec. 
89;  Johnston  v.  Wallace,  53  Miss. 
.333,  24  Am.  Rep.  699;  Pereau  v. 
Frederick,  17  Neb.  117,  22  N. 
235;  Mutual  T.tfe  Ins.  Co.  v. 
Corey,  135  N.  Y.  326,  31  N.  E. 
1095;  Moore  v.  Fuller,  6  Ore.  275, 
25  Am.  Rep.  524;  Heilman  v. 
Kroh,  155  Pa.  St.  1,  25  Atl.  751; 
Ronner  v.  Welcker,  99  Tenn.  623, 
42  S.  W.  439;  Wheelock  v.  Cavitt, 
91  Tex.  679,  66  Am.  St.  Rep.  920. 

So  it  has  been  held  that  the 
certificate  cannot  be  impeached 
by  a  showing  that  the  acknowl- 
edgment was  taken  by  telephone. 
Banning  v.  Banning,  80  Cal.  271, 
13  Am.  St.  Rep.  156. 

26.  Grider  v.  American  Free- 
hold Land  Mortg.  Co.,  99  Ala. 
281,  42  Am.  St.  Rep.  58;  Meyer 
V.  Gossett,  38  Ark.  377;  Le 
Mesnager  v.  Hamilton,  101  Cal. 
533,  40  Am.  St.  Rep.  81;  Smith 
V.  Ward,  2  Root  (Conn.)  374,  1 
Am.  Dec.  80;  Lewis  v.  McGrath, 
191  in.  401,  N.  E.  61  N.  E.  135; 
Morris  v.  Sargent,  18  Iowa,  90; 
O'Neil  V.  Webster,  150  Mass.  572, 
23  N.  E.  2.S5;  Spivey  v.  Rose, 
120     N.     C.     163,     26     S.    E.     701; 


Williams  v.  Carskadden,  36  Ohio 
St.  664;  Michener  v.  Cavender, 
38  Pa.  St.  334,  80  Am.  Dec.  486; 
Wheelock  v.  Cavitt,  91  Tex. 
679,   66   Am.   St.   Rep.   920. 

27.  Grider  v.  American  Free- 
hold Land  Mortg.  Co.,  99  Ala. 
281,  42  Am.  St.  Rep.  58;  Chiving- 
ton  V.  Colorado  Springs  Co.,  9 
Colo.  597;  Eyster  v  Hatheway, 
50  111.  521,  99  Am.  Dec.  537: 
Aultman-Taylor  Co.  v.  Erasure, 
95  Ky.  429,  26  S.  W.  5;  Central 
Bank  of  Frederick  v.  Copeland, 
18  Md.  305,  81  Am.  Dec.  597. 
O'Neil  V.  Webster,  150  Mass.  572, 
23  N.  E.  275;  Allen  v.  Lenoir,  53 
Miss.  32] :  Williamson  v.  Car- 
skadden, 36  Ohio  St.  664;  Cover 
V.  Manaway,  115  Pa.  St.  338,  2 
Am.  St.  Rep.  552;  Pierce  v.  Fort, 
60    Tex.    464. 

28.  De  Arnaz  v.  Escandon,  59 
Cal.  486;  Ladew  v.  Paine,  82  111. 
221;  Johnston  v.  Wallace,  53 
Miss.  331,  24  Am.  Rep.  699; 
Moore  v.  Fuller,  6  Ore.  272.  25 
Am.  Rep.  524;  Londen  v.  Blythe, 
27  Pa.  St.  22,  67  Am.  Dec.  142: 
Pennsylvania  Trust  Co.,  v  Kline. 
192  Pa.  St.  1,  43  Atl.  401; 
Campbell  v.  Harris  Lithia 
Springs  Co.,  74  S.  C.  282,  114 
Am.  St.  Rep.  1001;  Cason  v. 
Cason,  116  Tenn.  173,  93  S.  W. 
89;    Pierce  v.   Fort,   60   Tex.   464; 


§  460]  Transfer  Inter  Vivos.  17o5 

at  least  if  a  purchaser  for  value.^^ 

It  has  been  quite  frequently  decided  that,  as  against 
a  purchaser  for  value  and  without  notice,  if  the  certifi- 
cate is  regular  on  its  face,  it  cannot  be  showTi  that  there 
was  no  valid  acknowledgment  by  reason  of  lack  of 
authority  in  the  officer,  as  when  he  was  beneficially 
interested,  or  that  he  undertook  to  act  outside  of  his 
jurisdiction.  The  tendency  of  the  later  authorities  is 
to  regard  the  instrument  as  duly  acknowledged,  for 
the  purpose  of  making  its  record  effective  as  construc- 
tive notice,  in  favor  of  an  innocent  purchaser,  in  spite 
of  the  existence  of  such  a  defect,  not  apparent  on  the 
record  or  the  face  of  the  certificate."^*^  In  a  consider- 
able number  of  decisions,  however,  any  such  qualifica- 
tion upon  the  right  to  question  the  validity  of  the  ac- 
knowledgment is  ignored.^^ 

By  married  woman.     In   some  states,   a  con- 


veyance in  which  a  married  woman  joins,  whether  for 
the  purpose  of  conveying  her  own  property,  or  in  order 
to  release  her  rights  in  her  husband's  property,  must, 
in  order  to  be  etfective  as  against  her,  be  acknowledged 

29.  Lewars  v.  Weaver,  121  Pa.  92  Pac.  624,  93  Pac.  661;  National 
St.  268,  15  Atl.  514;  Edwards  v.  Bank  of  Fredericksburg,  1 
Boyd,  9  Lea    (Tenn.)    204.  Hughes    (U.  S.)    .'57  per  Waite,  C. 

30.  Ogden  Bldg.,  etc.,  Ass'n  v.  J. 

Mensch,   196   lU.   554,   89  Am.   St.  31.     See     Edinburgh     American 

Rep.  330,  63  N.  E.  1049;   Bank  of  Land   Mortg.   Co.   v.    Peoples,    102 

Benson  v.  Hove,   45   Minn.   40,  47  Ala.    241,    14    So.    656;    Leonhard 

N.  W.   449;    Stevens  v.   Hampton,  v.    Flood,    68   Ark.    162,    56    S.    W. 

46    Mo.    404;    Morrow  v.   Cole,    58  781;   Kothe  v.  Krag-Reynolds  Co., 

N.   J.   Eq.   203.   42   Atl.   673;    Heil-  20    Ind.   App.   293,   50   N.   E.   594; 

brun   V.   Hammond,    13    Hun   474;  Wilson    v.    Traer,    20    Iowa,    231; 

Blanton  v.  Bostic,  126  N.  C.   418,  Farmers,  etc.,  Bank  v.  Stockdale, 

35  S.  E.  1035;    Ardmore  National  121    Iowa,    748,    96    N.    W.    732; 

Bank  v.   Briggs,   20  Okla.   427,  23  Smith    v.    Clark,    100    Iowa,    605. 

L.  R.  A.  (N.  S.)  1074,  94  Pac.  533;  69     N.     W.     1011;     Groesbeck     v. 

Peterson  v.   Lowry,   48   Tex.   408;  Seeley,    13    Mich.    329;     Davis    v. 

Corey    v.    Moore,    86    Va.    721.    11  Beazley,    75    Va.    491;    Hunton   v. 

S.  E.   114;    BosweU  v.   First  Nat.  Wood,   101  Va.   54.   43    S.    E.    186. 
Bank   of   Laramie,    16    Wyo.    161, 


1736  Keal  Pkoperty.  [§  461 

by  her  before  the  officer  after  a  private  examination  by 
liim  to  ascertain  that  she  executes  it  voluntarily  and 
without  compulsion  from  her  husband,  and  the  certiti- 
cate  of  the  officer  must  state  that  he  so  examined  her, 
and  that  she  acknowledged  the  instrument  to  be  her 
free  and  voluntary  act.  In  some  of  the  other  states, 
while  a  private  examination  is  not  necessary,  the  certi- 
ficate must  contain  such  a  statement  as  to  the  free  and 
voluntary  nature  of  her  act.^^  The  officer  is  also  occa- 
sionally required  by  the  statute  to  ascertain,  before 
taking  the  acknowledgment,  that  she  understands  the 
nature  of  the  instrument."'^  The  number  of  states  in 
which  an  acknowledgment  is  thus  necessary  to  the 
validltv  of  a  conveyance  by  a  married  w^oman  is,  how- 
ever, steadily  diminishing,  the  tendency  of  recent  legis- 
lation being  to  enable  ner  to  dispose  of  her  property  as 
if  a  feme  sole. 

Proof  in  place  of  acknowledgment.     In  many 

states  the  statute  authorizes,  as  an  alternative  to  ac- 
knowledgment, and  as  preliminary  to  record,  proof  of 
the  authenticity  of  the  instrument,  ordinarily  by  the 
evidence  of  the  attesting  witnesses.  In  some  states  such 
proof  is  authorized  only  when  the  grantor  refuses  to 
make  acknowledgment,  or  dies  before  making  it.  In 
some  it  is  authorized  when  the  acknowdedginent  or  certifi- 
cate thereof  is  defective. ^^ 

§  461.  Delivery.  A  written  instrument,  regarded 
as  a  constitutive  or  dispositive  act,  becomes  legally 
operative  by  reason  either  (1)  of  the  mutual  action  of 
two  or  more  persons,  parties  in  interest  thereto,  or  (2) 
of  the  action  of  one  person,   from  whom  the   writing 

32.  1    Stimson's   Am.    St.    Law,       v.  Reese.  1G5  Pa.   St.  158,  30  Atl. 
§    6501.  722;     Mettler    v.    Miller,    129    111. 

33.  See    Norton    v.    Davis,    83       630,   22   N.   E.   529. 

Tex.   32,   18   S.   W.   4^5;    Drew   v.  34.     1    Stimson's   Am.    St.   Law, 

Arnold,   85  Mo.   128;    Tavenner  v.       §§    1590-16ii6. 
Barrett,   21   W.  Va.   656;    Spencer 


§  461]  Transfer  Inter  Vivos.  17117 

may  be  regarded  as  issuing.  The  mutual  action  of  two 
or  more  persons  is  required  in  the  case  of  what  are 
known  as  simple  contracts,  while  all  other  instruments, 
by  the  theory  of  the  English  common  law,"^  become 
legally  operative  by  the  action  of  one  party  only.  Of 
such  other  instruments,  some  are  said  to  take  eifect 
by  delivery,  this  term  serving  to  designate  the  final  act 
by  which  one  who  has  previously  signed  the  instrument, 
or  both  signed  and  sealed  it,  signifies  his  intention  that 
the  instrument  shall  have  a  legal  operation,  and  so 
realizes  his  intention  in  fact.  Conveyances  of  land,  in- 
cluding leases,  contracts  under  seal,  mortgages  of  land 
and  of  chattels,  deeds  of  gift,  insurance  policies,  and 
promissory  notes,  take  effect  by  delivery.  Of  the  in- 
struments which,  while  becoming  operative  by  the  action 
of  one  person  alone,  are  not  said  to  take  effect  by 
delivery,  the  most  important  class,  perhaps  the  only 
class,  consists  of  testamentary  instruments,  wills.  But 
though,  in  the  case  of  a  will,  there  is  no  requirement  of 
delivery  under  that  name,  nevertheless  an  instrument 
ordinarily  becomes  operative  as  a  will  only  by  virtue 
of  a  final  expression  of  intention  by  the  maker  to  that 
effect,  such  expression  usually  taking  the  form,  by  force 
of  statute,  of  a  declaration  in  the  presence  of  witnesses 
of  an  intention  that  the  instrument  shall  be  legally 
operative,  or  of  a  request  addressed  to  witnesses  to 
attest  the  signature  thereto,  ])rovided  they  accede  to  the 
request."*^  Such  final  expression  of  intention  in  the  case 
of  a  will  is  the  equivalent  of  the  final  expression  of  in- 
tention by  means  of  delivery  in  the  case  of  an  instru- 
ment inter  vivos. 

The  expression  "delivery,"  as  applied  to  a  written 
instrument,  had  its  inception,  it  appears,''^  in  connection 
with  written  conveyances  of  lands,  the  manual  transfer 

35.  Post,  §  463,  note  7.  Series)  §§  298,  302,  313;  2  Pollock 

36.  Post,  §  469.  &   Maitland,   Hist.   Eng.   Law,   85, 

37.  Brissaud,     French     Private  86. 
h'dvf,  (Continental   Legal   History 


1738  liEAL  Pkopekty,  [*^  461 

or  "deliver}^"  of  which  was,  in  early  times,  upon  parts 
of  the  continent  of  Europe,  regarded  as  in  effect  a 
symbolical  transfer  of  the  land  itself,  analogous  to 
livery  of  seisin.  And  not  only  was  the  notion  of  physi- 
cal delivery  of  the  instrument  applied  in  connection 
with  the  transfer  of  land,  hut  it  was  applied  also  in  con- 
nection with  written  evidences  of  contract,  the  physical 
transfer  of  the  document  being  necessary  to  make  it 
legally  operative,  and  being  effective  to  that  end.^^  The 
view  that  a  transfer  of  land  could  be  effected  by  means 
of  the  manual  transfer  of  a  writing  was  originally 
adopted  in  England  to  but  a  limited  extent,  but  in  so 
far  as  the  courts  recognized  the  effectiveness  of  a  writ- 
ten instrument  for  the  purpose  of  transfer  or  of  con- 
tract, they  adopted  the  continental  conception  of  a 
physical  change  of  possession  thereof  as  a  prerequisite 
to  its  legal  operation,  and  accordingly  the  necessity  of 
delivery  became  established  in  connection  with  various 
classes  of  written  instruments  as  they  came  to  be  recog- 
nized by  the  courts,  particularly  deeds  of  grant,  con- 
tracts under  seal,  the  only  class  of  contract  recognized 
in  the  earlier  history  of  our  law,  and  promissory  notes.^® 
^^Hiile,  as  before  stated,  the  necessity  of  delivery 
in  connection  with  the  instruments  last  named,  and 
others  of  an  analogous  character,  is  stiU  fully  recog- 
nized, the  crude  conception  of  a  manual  transfer  of  the 
instrument  as  the  only  means  of  making  it  legally 
effective,  which  gave  birth  to  the  expression  ^'delivery" 
as  used  in  this  connection,  has  been  superseded  by  the 
more  enlightened  view  that  whether  an  instrument  has 
been  delivered  is  a  question  of  intention  merely,  there 
being  a  sufficient  delivery  if  an  intention  appears  that 
it  shall  be  legally  operative,^"  however    this  intention 

38.  Brissaud.  op.  cit.   §   370;    2  Law    Quart.    Rev.    at    p.    17. 
Pollock  &  Maitland,  190.  40.     Fitzpatrick      v.      Briginan, 

39.  As  to  promissory  notes,  130  Ala.  450,  30  So.  500;  Russell 
see  article  by  Professor  W.  S.  v.  May,  77  Ark.  89,  90  S.  W.  617; 
Holdsworth,  "The  Early  History  Follmer  v.  Rohrer,  158  Cal.  755, 
of     Negotiable     Instruments,"     31  112  Pac.  544;   Flynn  v.  Flynn,  17 


§  461] 


Transfer  Inter  Vn^os. 


173:9 


may  bo  indicated.^^  Accordingly,  it  is  generally  agreed 
that  delivery  does  not  necessarily  involve  any  manual 
transfer  of  the  instrument,^ ^  ^^^^  provided  an  intention 
is  indicated  that  the  deed  shall  take  effect,  the  fact  that 
the  grantor  retains  possession  of  the  instrument  is  im- 


Idaho,  147,  104  Pac.  1030;  Bowers 
V.  Cottrell,  15  Idaho,  221,  96  Pac. 
936;  Riegel  v.  Riegel,  243  111. 
626,  90  N.  E.  1108;  Burkholder 
V.  Casad,  47  lud.  418;  Sheldon 
V.  Crane,  146  Iowa,  461,  125  N. 
W.  238;  Doty  v.  Barker,  78  Kan. 
636,  97  Pac.  964;  Burk  v.  Sproat, 
96  Mich.  404,  55  N.  W.  985;  Inger- 
soU  V.  Odendab.i,  136  Minn.  428. 
162  N.  W.  525;  Coulson  v.  Coul- 
son,  180  Mo.  709,  79  S.  W.  473; 
Martin  v.  Flaharty,  13  Mont.  96, 
32  Pac.  187,  19  L.  R.  A.  242,  40 
Am.  St.  Rep.  415;  Flannery  v. 
Flannery,  99  Neb.  557,  156  N.  W. 
1065;  Vreeland  v.  Vreeland,  48  N. 
J.  Eq.  56,  21  Atl.  627;  Fisher  v. 
Hall,  42  N.  Y.  416;  Lee  v.  Parker 
171  N.  C.  144,  88  S.  E.  217; 
Mitchell's  Lessee  v.  Ryan,  3  Ohio 
St.  377;  Johnson  v.  Craig,  37 
Okla.  378,  130  Pac.  581;  Sapping- 
field  V.  King,— Ore.— 8  L.  R.  A. 
N.  S.  106;  Hannah  v.  Swarnet,  8 
Watts  (Pa.)  11;  McCartney  v. 
McCartney,  93  Tex.  359,  55  S.  W. 
310;  Matson  v.  Johnson,  48  Wash. 
256,  125  Am.  St.  Rep.  924,  93 
Pac.  324;  Glade  Coal  Min.  Co.  v. 
Harris.  65  W.  Va.  152,  63  S.  E. 
873.  In  Cox  v.  Schnerr,  172  Cal. 
371,  156  Pac.  509,  it  is  in  effect 
said  that  though  the  grantor  In- 
tends, in  handing  the  instrument 
to  the  grantor,  to  make  it  oper- 
ative as  a  conveyance,  there  is 
no  delivery  if  it  is  procured  by 
fraud.  This  is,  it  is  submitted, 
erroneous.     The   intention   exists, 


and  hence  there  is  a  delivery, 
though  the  intention  is  based 
on  a  misconception  wrongfully 
induced.  There  are  almost  num- 
berless decisions  recognizing  that 
the  legal  title  passes  in  such 
case. 

41.  Delivery,  being  a  question 
of  intention,  is  one  of  fact,  for 
the  jury.  Murray  v.  Stair,  2 
Barn.  &  C.  82;  Fitzpatrick  v. 
Brigman,  133  Ala.  242,  31  So. 
940;  Donahue  v.  Sweeny,  171  Cal. 
388,  153  Pac.  708;  Emmons  v. 
Harding,  162  Ind.  154,  1  Ann. 
Cas.  864,  70  N.  E.  142;  Brann  v. 
Monroe,  11  Ky.  L.  Rep.  324; 
Bishop  V.  Burke,  207  Mass.  133, 
'^3  N.  E.  254;  O'Rourke  v. 
O'Rourke,  130  Minn.  292,  153  N. 
W.  607;  Hurlburt  v.  Wheeler,  40 
N.  H.  73;  Jones  v.  Swayze,  42 
N.  J.  L.  279;  Crain  v.  Wright, 
36  Hun,  74,  114  N.  Y.  307;  Ar- 
f'hambeau  v.  Edmunson,  87  Ore. 
476,  171  Pac.  186;  Fisher  v. 
Kean,  1  Watts  (Pa.)  278;  Kana- 
well  V.  Miller, — Pa.— 104  Atl. 
861;  McCartney  v.  McCartney,  93 
Tex.  359,  55  S.  W.  310;  Dwinell 
V.  Bliss,  58  Vt.  353.  5  Atl.  317; 
Holly  St.  Land  Co.  v.  Beyer,  48 
Wash.  422,  93  Pac.  1065;  Garrett 
V.  Goff,  61  W.  Va.  221,  56  S.  E. 
351;  Kittoe  v.  Willey,  121  Wis. 
548,   99   N.   W.  337. 

42.  Gulf  Red  Cedar  Co.  v. 
Crenshaw.  169  Ala.  606.  53  So. 
812;  Faulkner  v.  Feazel.  113  Ark. 
289,    168    S.    W.    568;     Smith    v. 


1740 


Eeal  Peoperty. 


[§  461 


material.^^  So,  while  it  is  frequently  said,  both  by  the 
older  and  later  authorities,  that  delivery  may  be  made 
to  a  third  person  for  the  benefit  of  the  grantee,^*  mean- 


May,  3  Penn.  (Del.)  233,  50  Atl. 
59;  Benneson  v.  Aiken,  102  111. 
28-1,  40  Am.  Rep.  592;  Hoyt  v. 
Northup,  256  in.  604,  100  N.  E. 
164;  Prince  v.  Prince,  258  111. 
304,  101  N.  E.  608;  Fitzgerald  v. 
Goff,  99  Ind.  28;  Newton  v. 
Bealer.  41  Iowa,  334;  Pentico  v. 
Hays,  75  Kan.  76,  88  Pac.  738,  9 
L.  R.  A.  (N.  S.)  224;  Kirby  v. 
Hulette,  174  Ky.  257,  192  S.  W. 
63;  Byers  v.  McClanahan,  6  Gill. 
&  J.  (Md.)  250;  Creeden  v.  Ma- 
honey,  193  Mass.  402,  79  N.  E. 
776;  Thatcher  v.  St.  Andrews 
Church,  37  Mich.  264;  Chastek 
V.  Souba,  93  Minn.  418,  101  N. 
W.  618;  Young  v.  Elgin — (Miss.) 
—27  So.  595;  Lee  v.  Parker,  171 
N.  C.  144,  88  S.  E.  217;  Dukes 
V.  Spangler,  35  Ohio  St.  119; 
Kanawell  v.  Miller,— Pa. — 104  Atl. 
861;  Farrar  v.  Bridges,  5  Hump. 
(Tenn.)  411;  Watson  v.  Johnson, 
48  Wash.  256,  125  Am.  St.  Rep. 
924,   93   Pac.   324. 

43.     Doe  d.  Garnons  v.  Kmght, 

5  Barn.  &  C.  671;  Xenos  v.  Wick- 
ham,  L.  R.  2  H.  L.  296;  Austin 
V.  Fendall,  2  MacArthur  (D.  C.) 
362;  Otis  v.  Spencer,  102  HI.  622, 
40  Am.  Rep.  617;  Colee  v.  Colee, 
122  Ind.  109,  17  Am.  St.  Rep. 
345;  Bunnell  v.  BunneH,  111  Ky. 
566,  64  S.  W.  420.  65  S.  W.  607; 
Moore  v.  Hazelton,  9  Allen 
(Mass.)     102;    Stevens    v.    Hatch, 

6  Minn.  64;  Wall  v.  Wall,  30 
Miss.  91,  64  Am.  Dec.  147;  Ruck- 
man  V.  Ruckman,  32  N.  J.  Eq. 
259;  Scrugham  v.  Wood,  15 
Wend.    (N.  Y.)    545,  30  Am.   Dec. 


75;  Mitchell's  Lessee  v.  Ryan,  3 
Ohio  St.  377;  Ledgerwood  v. 
Gault,  2  Lea  (Tenn.)  643;  Thatch- 
er V.  Capeca,  75  Wash.  249,  134 
Pac.   923. 

So  the  fact  that  the  grantor 
still  has  access  to  the  instru 
ment  does  not  conclusively  nega 
tive  delivery.  Strickland  v 
Griswold,  149  Ala.  325,  43  So 
105;  Cribbs  v.  Walker,  74  Ark 
104,  85  S.  W.  244;  Kenniff  v 
Caulfield.  140  Cal.  34,  73  Pac 
803;  Munro  v.  Bowles,  187  111 
346,  54  L.  R.  A.  864;  Terry  v 
Glover,  235  Mo.  544,  139  S.  W 
337;  Payne  v.  Hallgarth,  33  Ore 
430,  54  Pac.  162;  Wilson  v.  Wil 
son,  32  Utah  169,  89  Pac.  643. 

44.  Sheppard's  Touchstone,  57, 
4  Kent.  Comm.  455;  Doe  d. 
Garnons  v.  Knight,  5  Barn.  &  C. 
671;  Xenos  v.  Wickham,  L.  R. 
2  H.  L.  312:  Gulf  Red  Cedar  Co. 
v.  Crenshaw,  169  Ala.  606.  53 
So.  812;  Watson  v.  Hill,  123  Ark. 
601,  186  S.  W.  68;  Crozer  v. 
White— (Cal.)— 100  Pac.  130: 
Clark  V.  Clark,  183  111.  448.  75 
Am.  St.  Rep.  115;  Gomel  v.  Mc- 
Daniels,  269  111.  362,  109  N.  E. 
996;  Matheson  v.  Matheson.  139 
Iowa,  511,  18  L.  R.  A.  (N.  S.) 
1167.  117  N.  W.  755:  Harmon  v. 
Bower.  78  Kan.  135,  17  L.  R.  A. 
(N.  S.)  502,  16  Ann.  Cas.  121, 
98  Pac.  51:  Beatty  v.  Beatty,  151 
Ky.  547,  152  S.  W.  540;  Clark 
V.  Creswell,  112  Md.  339.  21  Ann. 
Cas.  338,  76  Atl.  579;  Foster  v. 
Mansfield,  3  Mete.  (Mass.)  412: 
Cooper  v.  Cooper,   162  Mich.  304. 


§  461] 


Transfer  Inter  Vivos. 


174J 


ing  thereby  that  the  conveyance  may  take  effect  by 
reason  of  physical  transfer  of  the  instrument  to  a  third 
person,  this  would  seem  to  result,  not  from  any  particu- 
lar virtue  in  the  transfer,  but  from  the  fact  that  the 
transfer  may  show  an  intention  to  make  the  instrument 
legally  operative.  A  declaration  to  such  third  person 
of  an  intention  that  the  deed  shall  take  effect  would 
seem  to  be  quite  as  effective  as  a  manual  transfer  to 
him,  if  satisfactoril}^  proven,^^  and  would  indeed,  as 
affording  indubitable  evidence  of  the  grantor's  inten- 
tion, have  a  conclusiveness  that  may  be  lacking  in  the 
case  of  a  mere  manual  transfer.  Such  a  transfer  to  a 
third  person,  if  not  made  with  the  intention  that  the 
instrument   shall   be    legally   operative,    does    not    con- 


127  N.  W.  266:  Barnard  v.  Thur- 
ston. 86  Minn.  343,  90  N.  W. 
574;  Sneathen  v.  Sneathen,  104 
Mo.  201.  24  Am.  St.  Rep.  326; 
Jones  V.  Swayze,  42  N.  J.  L.  279: 
Church  V.  Oilman,  15  Wend.  (N. 
Y.)  656:  Robblns  v.  Roscoe,  120 
N.  C.  79.  38  L.  R.  A.  238,  58 
Am.  St.  Rep.  774:  Meeks  v.  StUl- 
well,  54  Ohio  St.  541;  Belcher  v. 
La  Grande  Nat.  Bk.  87  Ore.  t)65, 
171  Pac.  410;  Blight  v.  Schenck, 
10  Pa.  St.  285;  Eckman  v.  Eck- 
man,  55  Pa.  St.  269;  Kanner  v. 
Startz,— Tex  Civ.  App.— ,  203  S. 
W.    603. 

Statements,  occasionally  found, 
to  the  effect  that  the  instrument 
must  be  handed  to  the  third 
person  with  the  intention  that 
h<»  pass  it  on,  so  to  speak,  to 
the  grantee  named  (See  e.  g. 
Osborne  v.  Eslinger,  155  Ind.  351, 
80  Am.  St.  Rep.  240,  58  N.  E. 
439)  or  that  he  must  so  pass  it 
on  (Furenes  v.  Eide,  109  Iowa, 
511,  77  Am.  St.  Rep.  545.  80  N. 
W.  539;  Jackson  v.  Phlpps,  12 
Johns.  (N.  Y.)  418)  are,  it  is 
2  R.  P.— 35 


submitted,  absolutely  incorrect. 
The  intention  of  the  grantor  as 
to  whether  the  instrument  shall 
take  effect  as  a  conveyance  is 
the  subject  for  ascertainment,  not 
his  intention,  if  he  happens  to 
have  any,  as  to  the  ultimate 
custody     of     the     writing. 

In  one  state  it  appears  to  have 
been  decided  that  a  manual 
transfer  to  a  third  person  cannot 
involve  delivery  unless  such  per- 
son is  a  duly  authorized  agent 
of  the  grantee.  Jameson  v. 
Goodwin,  —  Okla.  —  170  Pac.  241, 
Such  a  view  is,  it  is  submitted, 
entirely  out  of  harmony  with 
the   authorities    generally. 

45.  3  Preston,  Abstracts,  63; 
Doe  d.  Garnons  v.  Knight,  5 
Barn.  &  C.  671;  Xenos  v.  Wlck- 
ham,  L.  R.  2  H.  L.  312;  Linton 
V.  Brown's  Adm'rs  (C.  C.)  20 
Fed.  455;  Rushin  v.  Shields,  11 
Ga.  636,  56  Am.  Dec.  436;  Moore 
V.  Hazelton,  9  Allen  (Mass.)  102; 
Regan  v.  Howe,  121  Mass.  424; 
Kane  v.  Mackln,  9  Smedes  &  M. 
(Miss.)    387;    Vought    v.    Vought, 


1742 


Real  Propeety. 


[§  461 


stitute  a  delivery;**'  nor  does  such  a  transfer  to  the 
grantee  himself,  if  the  transfer  is  not  with  such  inten- 
tion, but  is  for  another  purpose  as,  for  instance,  to  en- 
able him  to  examine  the  instrument.*"^ 

In  spite,  however,  of  these  numerous  decisions 
recognizing  the  minor  imjiortance  of  the  matter  of 
actual  transfer  of  the  instrument  in  connection  with 
the  question  of  delivery,  the  courts  not  infrequently 
speak  as  if  such  transfer  were  an  essential  in  delivery. 
The  occasional  mention,  moreover,  of  delivery  "to"  the 
grantee,    suggests   the   idea   of   a  physical   transfer   to 


50  N.  J.  Eq.  177,  27  Atl.  489; 
Scrugham  v.  W^ood,  15  Wend. 
(N.  Y.)  54,5;  Diehl  v.  Emig,  tJ5 
Pa.  St.  320;  Contra,  Moore  v. 
Conins,  15  N.  C.  384. 

46.  Co.  Litt.  36a;  Sheppard's 
Touchstone  57;  Culver  v.  Carroll, 
175  Ala.  469,  Ann.  Cas.  1914D, 
103,  57  So.  767;  Baker  v.  Baker. 
—  (Cal.)— ,  100  Pac.  892;  Merrills 
V.  Swift,  18  Conn.  257;  Porter  v. 
Woodhouse,  59  Conn.  568,  13  L. 
R.  A.  64,  21  Am.  St.  Rep.  131, 
22  Atl.  299;  Lange  v.  Cullinan 
205  111.  365,  68  N.  E.  934;  Connor 
V.  Buhl,  115  Mich.  531,  73  N.  W. 
821;  Cannon  v.  Cannon,  26  N.  J. 
Eq.  316;  Jackson  v.  Phlpps,  12 
Johns.  (N.  Y.)  418;  MltcheH's 
Lessee  v.  Ryan,  3  Ohio  St.  377; 
Sears  v.  Scranton  Trust  Co.,  228 
Pa.  226,  20  Ann.  Cas.  1145,  77 
Atl.  423;  Leftwich  v.  Early.  115 
Va.  323,  79  S.  E.  384;  Showalter 
V.  Spangler,  93  Wash.  326,  160 
Pac.    1042. 

A  statement  of  an  intention 
that  the  conveyance  shall  be 
immediately  operative  has  been 
regarded    as    effective    as    a    de- 


livery, although  the  instrument 
had  been  previously  placed  in 
another's  custody  to  hold  It  in 
behalf  of  the  grantor.  Moore 
V.  Trott,  162  Cal.  268.  122  Pac. 
462;  Elliott  v.  Hoffhine,  97  Kan. 
26,    154    Pac.    225. 

47.  Bray  v.  Bray,  132  Ark. 
438,  201  S.  W.  281;  Kenney  v. 
Parks,  137  Cal.  527,  70  Pac.  556; 
Cox  V.  Schnerr,  172  Cal.  371. 
156  Pac.  509;  Oswald  v.  Caldwell. 
225  111.  224,  80  N.  E.  131: 
Kavanaugh  v.  Kavanaugh,  260 
111.  179,  103  N.  E.  65;  Witt  v. 
Witt,  174  Iowa.  173.  156  N.  W. 
321;  Ball  v.  Sandlin,  176  Ky. 
537,  175  S.  W.  1089;  Tewkesbury 
v.  Tewkesbury,  222  Mass.  595.  Ill 
N.  E.  394;  Comer  v.  Baldwin,  Its 
Minn.  172;  Braman  v.  Bingham. 
26  N.  Y.  483;  Gaylord  v.  Gaylord, 
150  N.  C.  222.  63  S.  E.  1028; 
Clark  V.  Clark.  56  Ore.  218.  107 
Pac.  23;  In  re  Nicholl's  Petition. 
190  Pa.  308,  42  Atl.  692:  Gordon 
V.  White,  33  S.  D.  234.  145  N.  W. 
439;  Dwinell  v.  Bliss.  58  Vt. 
353,  5  Atl.  317:  Zoerb  v.  Paetz, 
137   Wis.    59,    117   N.   W.    793. 


1^  4G1 1  Tkansfer  Inter  Vivos.  17415 

him.  The  delivery  of  a  conveyance  or  other  instrument 
involves  in  its  essence  no  delivery  ''to"  any  one,  since 
it  means  merely  the  expression,  by  word  or  act,  of  an 
intention  that  the  instrument  shall  be  legally  operative, 
and  the  fact  that  in  many  cases  such  intention  is  indi- 
cated by  the  making  of  a  physical  transfer  does  not 
show  that  such  transfer  is  necessary.  The  partial 
survival  of  the  primitive  formalism,  as  it  has  been  well 
termed,^^  which  attached  some  peculiar  efficacy  to  the 
physical  transfer  of  the  instrument,  as  involving  a 
symbolical  transfer  of  the  property  described  therein, 
is  presumably  to  be  attributed  to  the  fact  that  in  other 
connections  the  words  ''deliver"  and  "delivery,"  as 
applied  to  inanimate  things,  ordinarily  have  reference 
to  a  physical  transfer. 

It  being  conceded  that  even  a  voluntary  transfer  of 
the  instrument  by  the  grantor  to  the  grantee  does  not  in- 
volve a  delivery  if  not  with  the  intention  that  the  in- 
strument shall  be  legally  operative,  it  necessarily  fol- 
lows that  the  instrument  cannot  be  regarded  as  having 
been  delivered  merely  because  the  grantee  has  ac- 
quired possession  thereof  without  the  grantor's  con- 
sent.^^  And  it  has  been  decided  that  the  fact  of  non 
delivery  in  such  case  may  be  asserted  even  as  against  a 
subsequent  bona  fide  purchaser,  who  purchased  in  re- 
liance on  the  grantee's  possession  of  the  instrument.-"'" 

48.  4     Wigmore,     Evidence,     §       v.   Ayer,  2G   Ore.   589,   39   Pac.    1; 
2405.  King  v.    Diffey— Tex.  Civ.   App.— 

49.  Bender  v.  Barton,  166  Ala.       192  S.  W.  262. 

337,  52  So.  26;  Bowers  v.  Cottrell,  50.     Gould  v.   Wise,  97  Cal.  532. 

15  Idaho,  221,  96  Pac.  936;   Lundy  32   Pac.   576,   33    Pac.   323:    Henry 

v.   Mason,   174    111.    505.    51    N.    E.  v.  Carson,  96   Ind.  412;    Ogden  v. 

614;    Schaefer    v.    Purvlance.    160  Ogden,   4   Ohio   St.   458;    Burns  v. 

Ind.    63,    66   N.   E.    154;.  Hintz   v.  Kennedy,    49    Ore.    588,    90    Pac. 

Hintz,   175   Iowa,   392,   156   N.   W.  1102;    Van  Amrlnge  v.  Morton,   4 

878;     White    v.    Holder— (Ky.)—  Whart.     (Pa.)     382;     Steffian     v. 

118  S.  W.  995;  Westlake  v.  Dunn,  Milmo  Nat.  Bank,  69  Tex.  513.  6 

184   Mass.   260,   100   Am.   St.   Rep.  S.     W.     823;     Tyler     Building    & 

557;     Gardiner    v.    Gardiner,    134  Loan   Ass'n   v.   Baird   &   Scales. — 

Mich.    90,    95    N.    W.      973;    Allen  Tex.   Civ.    App.—.    16.')   S.    W.    5J2. 


174-4:  Eeal  Property.  [§  461 

There  arc,  however,  dicta  to  the  effect  that  the  grantor 
may,  by  reason  of  his  lack  of  care  in  the  custody  of  the 
instrument,  be  estopped,  in  favor  of  a  bona  fide  pur- 
chaser, to  deny  its  delivery.^  ^ 

Apart  from  any  question  of  houa  fide  purchase, 
there  are  a  number  of"  decisions  to  the  effect  that  an  in- 
strument of  conveyance,  the  possession  of  which  has 
been  improperly  acquired  by  the  grantee  named  therein, 
may  be  subsequently  made  operative  by  the  grantor's 
recognition  of  the  title  as  being  in  such  grantee.^^  In 
connection  with  these  decisions  the  courts  ordinarily 
speak  of  such  recognition  as  involving  a  ''ratification" 
of  the  deed  or  of  the  delivery,  but  what  actually,  occurs 
is,  it  is  conceived,  a  delivery  by  the  grantor,  that  is, 
an  expression  of  an  intention  by  him,  not  previously 
expressed,  that  the  instrument,  which  has  already 
passed  into  the  grantee's  hands,  shall  take  effect  as  a 
transfer  of  title.  An  instrument  which  is  inoperative 
as  a  conveyance  for  lack  of  legal  delivery  cannot  be 
made  operative  by  ratification,  there  being  indeed,  in 
such  case,  nothing  to  ratify.  And  likewise  a  j^hysical 
transfer  of  the  instrument,  which  lacks  all  legal  sig- 
nificance because  not  made  by  one  authorized  to  make 
delivery,  cannot  thereafter,  by  ratification,  be  trans- 
formed into  a  legal  delivery,  that  is,  an  expression  of 
intention  that  the  instrument  shall  be  legally  operative. 

51.     Gould  V.  Wise,  97  Cal.  532.  Co.,    13    C.   C.   A.    1,   65   Fed.   441. 

32    Pac.    576,    33    Pac.    323;    Alex-  See   post.    §    462,   note   42. 

ander  v.  Welcker.  141  Cal.  302,  74  52.     Whitney      v.      Dewey,      10 

Pac.   845;    Allen  v.  Ayer,  26   Ore  Idaho,    633,    69    L.    R.    A.    572,    80 

589,  39  Pac.  1;  Merck  v.  Merck,  83  Pac.    1117;    Phelps    v.    Pratt,    225 

S.  Car.  329,  137  Am.  St.  Rep.  815,  111.    85,    9    L.   R.   A.    (N.    S.)    945, 

65    S.    E.    347;    Steffian   v.   Mllmo  80  N.  E.  69:  Harkness  v.  Cleaves, 

Nat)  Bank,   69   Tex.   513,  6   S.  W.  113    Iowa,    140,    84    N.    W.    1033; 

823;    Garner  v.  Risinger,   35  Tex.  McNulty     v.     McNulty,     47     Kan. 

Civ.    App.    378,    81     S.    W.    343;  208,     27     Pac.     819;     Pannell     v. 

Tisher   v.    Beckwith,    30    Wis.    55,  Askew,— Tex.  Civ.   App. — ,  143   S. 

11    Am.    Rep.    546;     Laughlin    v.  W.    364. 
Calumet  &  Chicago  Canal  &  Dock 


§  461] 


Transfer  Inter  Vivos. 


J  745 


Delivery  by  agent.  The  delivery  of  an  instru- 
ment is  a  part  of  the  execution  thereof,'^^  and  in  so  far 
as  a  written  or  sealed  authority  may  be  necessary  to 
enable  one  to  sign  or  seal  an  instrument  as  an  agent 
acting  in  behalf  of  the  grantor,  such  an  authority  is,  it 
is  conceived,  necessary  to  enable  one  to  deliver  the 
instrument  as  such  agent. ^^  It  would  be  strange  if  the 
final  expression  of  intention,  which  makes  the  instru- 
ment legally  operative,  could  be  given  by  one  acting 
under  an  oral  authority,  while  the  merely  preliminary 
acts  of  signing  and  sealing  can  be  performed  by  an 
agent  only  when  acting  under  authority  in  wiiting. 
There  are,  however,  to  be  found  occasional  judicial 
statements  that  a  deed  may  be  delivered  by  one  acting 
under  oral  authority,^^  and  that  this  may  be  done  is  not 
infrequently  assumed  by  the  courts.^^  That  an  oral 
authority  is  sufficient  for  this  purpose  appears  to  be 
involved  in  the  decisions,  rendered  in  a  number  of 
states,^^  that  a  conveyance  which,  at  the  time  it  leaves 


53.  See  Goodlet  v.  Goodman 
Coal  &  Coke  Co.,  192  Fed.  775, 
113  C.  C.  A.  61;  Clark  v.  Child, 
66  Cal.  87,  4  Pac.  1058;  Bowers 
V.  Cottrell,  15  Idaho,  221,  96  Pac. 
936;  Colee  v.  Colee,  122  Ind.  109, 
17  Am.  St.  Rep.  345;  McAndrew 
V.  Sewell,  100  Kan.  47,  163  Pac. 
653;  Tucker  v.  Helgien,  102  Minn. 
382,  113  N.  W.  912;  and  other 
cases  cited  in  "Words  &  Phrases" 
under   "Execute." 

54.  That  an  agent  cannot  de- 
liver a  deed  without  authority 
under  seal  is  explicitly  decided  in 
Hibblewhlte  v.  M'Morine,  6  Mees. 
&  W.  200;  Powell  v.  London  & 
Provincial  Bank  (1893),  2  Ch. 
555. 

So  it  is  said  In  Sheppard's 
Touchstone  at  p.  57,  that  "where 
one  person  delivers  an  instru- 
ment as   the   act   of  another   per- 


son, who  is  present,  no  deed  con- 
ferring an  authority  is  requisite. 
But  a  person  cannot,  unless  au- 
thorized by  deed,  execute  an  in- 
strument as  the  act  of  a  person 
who    is   absent." 

55.  White  v.  Duggan,  140  Mass. 
18,  54  Am.  Rep.  437;  Macurda  v. 
Fuller,  225  Mass.  341,  114  N.  E. 
366;  Lafferty  v.  Lafferty,  42  W. 
Va.  783,  26  S.  E.  262.  See  Huff- 
cut,  Agency   (2nd  Ed.)    p.  38. 

56.  Sturtevant  v.  Sturtevant, 
116  111.  340,  6  N.  E.  428;  Furenes 
V.  Eide,  109  Iowa,  511,  77  Am. 
St.  Rep.  545,  80  N.  W.  539;  Con- 
way V.  Rock,  139  Iowa,  162,  117 
N.  W.  273;  Santaquin  Min.  Co.  v. 
High  Roller  Min.  Co.,  25  Utah 
282,  71  Pac.  77;  Spring  Garden 
Bank  v.  Ilulings  Lumber  Co.,  32 
W.   Va.   357,   3   L.   R.  A.  583. 

57.  Ante,   §    434.   note   t;8. 


1746  Real  Property.  [§  461 

the  hands  of  the  grantor,  hicks  the  name  of  a  grantee, 
becomes  valid  if  the  name  is  subsequently  inserted  by 
an  agent  acting  under  oral  authority  from  the  grantor, 
these  decisions  apparently-  involving  the  assumption 
that  the  delivery  of  the  deed  is  made  by  such  agent, 
since  delivery  could  not  be  made  so  long  as  the  instru- 
ment, lacking  the  name  of  the  grantee,  was  a  legal 
nullity,  and  there  is  no  act  by  the  grantor,  after  the  in- 
sertion of  such  name,  which  can  be  referred  to  as 
indicative  of  an  intention  to  deliver. 

The  view  indicated  in  the  decisions  referred  to, 
that  an  agent  acting  under  oral  authority  may  make 
delivery,  is  presumably  based  on  the  misconception, 
previously  referred  to,  that  delivery  of  a  deed  means 
merely  the  manual  transfer  of  the  instrument.  That 
an  agent  in  possession  of  the  instrument  in  behalf  of 
the  grantor  is  in  a  position  to  hand  it  to  the  grantee, 
whether  his  agency  is  based  on  a  written  or  an  oral 
authority,  is  sufficiently  obvious,  and  because  he  is  in 
a  position  to  do  this  it  is  assumed  that  he  has  the 
power  and  authority  to  make  delivery  of  the  instrument 
on  behalf  of  the  grantor.  But  delivery  of  the  instru- 
ment involves  more  than  a  manual  transfer  thereof,  and 
the  fact  that  the  agent  is  in  a  position  to  make  such  a 
transfer  is  no  reason  for  assuming  that  he  has  legal 
authority  to  express,  by  word  or  act,  an  intention  on 
the  part  of  the  grantor  that  the  instrument  shall  be- 
come legally  operative.  It  no  doubt  frequently  occurs 
that  the  grantor  hands  the  completed  instrument  to  an 
agent,  with  oral  instructions  to  hand  it  to  the  grantee 
upon  some  subsequent  event,  ordinarily  the  payment  of 
the  purchase  money.  In  such  case,  however,  the  de- 
livery, it  is  conceived,  is  properly  to  be  regarded  as  a 
conditional  delivery  made  by  the  grantor  himself,  a 
delivery  made  by  him,  that  is,  at  the  time  of  handing 
the  instrument  to  his  agent,  conditioned  however  upon 
the  subsequent  payment  of  the  purchase  money  or 
occurrence  of  the  other  event  named,  on  which  the 
agent  was  to  hand  the  instrument  to  the  grantee.  Upon 


§  461] 


Transfer  Inter  Vivos. 


1747 


the  satisfaction  of  the  condition  the  delivery  by  the 
grantor  becomes  effective,  as  in  the  case  of  any  other 
conditional  delivery,"^  and  the  mere  act  of  the  agent  in 
handing  the  instrument  to  the  grantee  is  not  technically 
speaking,  a  delivery  thereof,  it  having  already  been 
delivered. 

Since  the  delivery  must  be  made  by  the  grantor, 
or  by  the  grantor's  agent,  in  order  to  be  eft'ective, 
there  can  be  no  delivery  after  the  grantor's  death.  A 
deceased  grantor  can  obviously  not  make  delivery,  and 
the  agent's  authority  necessarily  comes  to  an  end 
upon  the  death  of  the  principal.^'' 

Retention  of  control.     It   is  not  infrequently 


said  that  there  is  no  delivery  if  the  grantor  still  re- 
tains control  or  dominion  over  the  deed.*'*'  Such  a  state- 
ment is  somewhat  ambiguous.  The  mere  fact  that  the 
grantor  retains  possession  of  the  instrument  is,  as  above 


58.  Post,     §     462. 

59.  Mortgage  Trust  Co.  of 
Pennsylvania  v.  Moore,  150  Ind. 
465,  50  N.  E.  72;  Schaeffer  v. 
Anchor  Mut.  Fire  Ins.  Co.,  11.3 
Iowa,  652,  85  N.  W.  985;  Colyer 
V.  Hyden,  94  Ky.  180,  21  S.  W. 
868;  Taft  v.  Taft,  59  Mich.  185, 
60  Am.  Rep.  291;  Givens  v.  Ott. 
222  Mo.  395,  121  S.  W.  23;  Meikle 
V.  Cloquet,  44  Wash.  513,  87  Pac. 
841. 

60.  See  e.  g.  Tarwater  v. 
Going,  140  Ala.  273,  37  So.  330; 
Porter  v.  Woodhouse,  59  Conn. 
568,  13  L.  R.  A.  64,  21  Am.  St. 
Rep.  131,  22  Atl.  299;  Rutledge 
V.  Montgomery,  30  Ga.  899;  Cal- 
lerand  v.  Plot,  241  111.  120,  89 
N.  E.  266:  Pethel  v.  Pethel,  45 
Ind.  App.  664,  90  N.  E.  102; 
Kirby  v.  Hulette,  174  Ky.  257, 
192  S.  W.  63;  Renehan  v.  Mc- 
Avoy,  116  Md.  356,  38  L.  R.  A. 
(N.    S.)    941,    81    Atl.    586;    .Toslin 


V.  Goddard,  187  Mass.  165.  72 
N.  E.  948;  Taft  v.  Taft,  59  Mich. 
185,  60  Am.  Rep.  291;  Ingersoll 
V.  Odendahl.  136  Minn.  428,  162 
N.  W.  525:  Hall  v.  Waddill,  78 
Miss.  16,  27  So.  936,  28  So.  831;- 
Peters  v.  Berkemeier,  184  Mo. 
393,  83  S.  W.  747;  Baker  v. 
Haskell,  47  N.  H.  479,  93  Am. 
Dec.  455;  Fisher  v.  Hall,  41  N. 
Y.  416;  Gaylord  v.  Gaylord,  150 
N.  C.  222,  63  S.  E.  1028;  Arne- 
gaard  v  Arnegaard,  7  N.  D.  475, 
41  L.  R.  A.  258;  Ball  v.  Fore- 
man, 37  Ohio  St.  l:{9;  Eckman  v. 
Eckman,  55  Pa.  St.  269;  Johnson 
V.  John.son,  24  R.  I.  571,  54  Atl. 
378;  Merck  v.  Merck,  83  S.  C. 
329,  137  Am.  St.  Rep.  815,  65  S. 
E.  347;  Cassidy  v.  Holland,  27 
S.  D.  287,  130  N.  W.  771;  Gaines 
V.  Keener,  48  W.  Va.  56,  35  S. 
E.  856;  Butts  v.  Richards,  152 
Wis.    318,    140    N.    W.    1. 


1748  Real  Property.  [§  461 

indicated,*'^  not  incompatible  with  delivery,  and  yet  it 
can  hardly  be  said  that,  having  possession  of  the  deed, 
he  has  no  dominion  or  control  thereover.  The  state- 
ment may  mean  that  the  fact  that  the  grantor  has  a 
right  to  demand  the  physical  possession  of  the  insti'n- 
ment,  or  to  refuse  to  relinquish  such  possession,  conclu- 
sively shows  that  the  instrument  has  not  been  delivered 
since,  after  delivery,  the  grantee,  and  not  the  grantor, 
is  entitled  to  control  the  possession  of  the  instrument, 
it  being  his  muniment  of  title.  Or  it  may  mean  that  the 
fact  that  the  grantor  has  a  right  to  determine  whether 
the  instrument  shall  have  a  legal  operation  shows  that 
it  has  not  been  delivered,  since  after  delivery  he  has 
no  such  right.  But  since  the  question  whether  the 
grantor  has  the  right  of  control  as  regards  either  pos- 
session of  the  instrument  or  its  legal  operation  depends 
on  whether  there  has  been  a  delivery,  the  statement  re- 
ferred to  amounts  to  little  more  than  a  statement  that, 
so  long  as  the  instrument  is  subject  to  the  grantor's 
control  by  reason  of  lack  of  delivery,  the  instrument 
has  not  been  delivered.  The  statement  is  unquestion- 
ably correct,  but  appears  to  be  of  questionable  utility, 
and  its  frequent  repetition  is  calculated  to  obscure, 
rather  than  to  clarify,  the  nature  of  delivery. 

Presumptions    as   to   delivery.     In   connection 


with  the  question  of  the  delivery  of  a  deed,  various 
rules  of  presumption  have  been  judicially  asserted,  that 
is,  particular  states  of  fact  have  been  regarded  as  show- 
ing prima  facie,  that  the  instrument  has  or  has  not  l)een 
delivered. 

It  has  been  said  that  the  fact  that  the  instrument 
remains  in  the  possession  of  the  grantor  raises  a  pre- 
sumption that  it  has  not  been  delivered.''-    This  appears 

61,  Ante,  this  section,  note  43.  133    Iowa,    320,    107    N.    W.    310, 

62.  Donahue  v.  Sweeny,  171  110  N.  W.  582;  Dunbar  v.  Mea- 
Cal.  388,  153  Pac.  708;  Kavan-  dows,  165  Ky.  275,  176  S.  W. 
augh  V.  Kavanaugh,  260  III.  79,  1167;  Dudley  v.  Niclierson,  107 
103  N.  E.  65;    Shetler  v.  Stewart,  Me.  25,  78  Atl.   100;    Kanawell  v. 


§  461]  Transfer  Inter  Vivos.  17-1-9 

to  be  merely  another  way  of  saying  that  delivery  is  an 
affirmative  fact,  the  burden  of  proving  which  is  upon 
the  person  alleging  it.  If  he  cannot  support  this  burden 
by  evidence  of  a  change  of  possession  of  the  instru- 
ment, he  must  support  it  by  other  evidence."^ 

While  a  presumption  of  non  delivery  is  said  ordi- 
arily  to  arise  from  the  grantor's  possession  of  the 
instrument,  no  such  presumption  arises,  it  is  said,  if 
the  grantor,  by  the  terms  of  the  instrument,  reserves 
a  life  estate  in  the  property,  for  the  reason  that  there 
is  no  object  in  such  a  reservation  unless  the  instrument 
is  to  operate  before  the  grantor's  death.''^  That  such 
a  reservation  shows  that  the  instrument  was  i)rei)ared 
with  the  intention  that  its  operation  should  not  be 
postponed  till  the  grantor's  death  may  be  conceded, 
but  it  is  difficult  to  see  what  bearing  this  has  on  the 
question  of  delivery,  since  the  form  of  the  instrument, 
even  without  .the  reservation,  shows  that  it  was  pre- 
pared with  this  intention.  It  might  as  well  be  said 
that  any  instrument  in  the  form  of  a  conveyance  inter 
vivos  as  disting-uished  from  a  will,  though  still  in  the 
possession  of  the  grantor,  is  to  be  presumed  to  have 
been  delivered,  since  it  would  not  have  l;een  prepared 
in  that  form  had  it  not  been  intended  to  operate  be- 
fore the   grantor's  death.     Delivery  is,    as  above   indi- 

Miller,  —Pa.—  104  Atl.  861;   Cas-  W.  Va.  56,  ;{5  S.  E.  856;    Butts  v. 

sidy    V.    Holland,    27    S.    D.    287,  Richards,  152  Wis.  318.  44  L.  R. 

130  N.  W.  771;   Butts  v.  Richards,  A.    (N.  S.)    528,  Ann.  Cas.  1914C, 

152   Wis.    318,   140   N.   W.    1.  854,    140    N.    W.    1. 

63.     See    Jenkins    v.     Southern  64.     Hill    v.    Kreiger,    250     111. 

R.  Co.,  109  Ga.  35,  34   S.  E.  355;  408,  95  N.  E.  468;  Buck  v.  Garber. 

Burton     v.     Boyd,     7     Kan.      1:  261     111.    378,     103     N.     E.     1059; 

Powers      V.      RusseU,      13      Pick.  Collins    v.    Smith,    144    Iowa.    200. 

(Ma:!S.)     69:     Bisard     v.     Sparks,  122     N.     W.     839;      Sneathen     v. 

133    Mich.    587,    95    N.    W.    728;  Sneathen,    104    Mo.    201,    24    Am. 

Ligon    V.    Barton,    88    Miss.    135,  St.  Rep.   326,  16   S.  W.   497;    Wil- 

40  So.  555;  Tyler  v.  Hall,  106  Mo.  liams    v.    Latham,    113    Mo.    165, 

313,    27    Am.    St.    Rep.    338;     At-  20    S.    W.    99;    Ball    v.    Foreman, 

wood    V.    Atwood,    15    Wash.    285,  37  Ohio  St.  132. 
46  Pac.  240;   Gaines  v.  Keener,  48 


1750  Eeal  Peopbrty.  [^  461 

cated,  the  final  expression,  subsequent  to  the  signing 
and  sealing,  of  an  intention  that  the  instrument  shall 
he  legally  operative,  and,  whatever  the  form  of  the 
instrument,  it  cannot  well  constitute  the  basis  for  an 
inference  that,  subsequent  to  the  signing  and  sealing, 
such  intention  was  expressed.^^ 

It  has  furthermore  been  said  that  the  grantor's 
retention  of  the  instrument  does  not  give  rise  to  a 
presumption  of  non-delivery  if  he  retains  an  interest  in 
the  property  and  it  is  consequently  to  his  advantage 
that  the  instrument  be  preserved.*'^  It  is,  however,  dif- 
ficult to  see  that,  in  the  ordinary  case,  it  is  to  his 
advantage  that  the  instrument  be  preserved,  if  its 
effect  is  to  divest  him  of  either  the  whole  interest  or  a 
partial  interest  in  the  property.  He  would  in  either 
case  be  better  off  if  the  instrument  were  no  longer 
available  for  the  purpose  of  asserting  his  grantee's 
rights  thereunder. 

That  the  instrument  is  in  the  possession  of  the 
grantee  named  therein  is  usually  referred  to  as  raising 
a  presumption  that  it  has  been  delivered,''"  based,  it 
would  seem,  on  the  probability  that  the  grantor  gave 
him  possession  of  the  instrument,  and  the  improbability 
that  the  grantor  would  vest  him  w^ith  such  a  muniment 
of  title  unless  he  intended  that  the  title  should  pass. 

65.  See  Colyer  v.  Hyden,  94  E.  204;  Inmau  v.  Swearingen, 
Ky.  180,  21  S.  W.  868;  Whitney  198  III.  437,  64  N.  E.  1112; 
V.  Dewey,  10  Idaho,  6H3,  69  L.  R.  Hathaway  v.  Cook,  258  111.  92, 
A.  572,  80  Pac.   1117.  101   N.  E.  227;    Hild  v.  Hild,  129 

66.  Blakemore  v.  Byenside,  7  Iowa,  649,  113  Am.  St.  Rep. 
Ark.  504;  Cribbs  v.  Walker,  74  500;  Fish  v.  Poorman,  85  Kan. 
Ark.  104,  85  S.  W.  244;  Scrug-  237,  116  Pac.  898;  Ball  v.  Sandlin, 
ham  V.  Wood,  15  Wend.  (N.  Y.)  176  Ky.  537,  195  S.  W.  1089; 
545.  Valentine   v.    Wheeler,    116    Mass. 

67.  Games  v.  Stiles,  14  Pet.  478;  Barras  v.  Barras,  192  Mich. 
(U.  S.)  322,  10  L.  Ed.  476;  584,  159  N.  W.  147;  Wilson  v. 
Simmons  v.  Simmons,  78  Ala.  Wilson,  85  Neb.  167,  122  N.  W. 
365;  Thompson  v.  McKenna,  22  856;  Plerson  v.  Fisher,  48  Ore. 
Cal.  App.  129,  133  Pac.  512;  Hill  223,  85  Pac.  621;  Painter  v. 
V.    Merritt,    146    Ga.    307,    91    S.  Campbell,    207    Pa.    189,    56    Atl. 


§  461]  Transfee  Inter  Vivos.  1751 

In  England  and  Massachusetts  there  are  decisions 
to  the  effect  that  the  signing  and  sealing  of  the  instru- 
ment in  the  presence  of  an  attesting  witness  raises  a 
presumption  of  delivery,''^  the  effect  of  which  presump- 
tion would  be  to  justify  a  finding  of  delivery,  although 
the  instrument  is  still  in  the  grantor's  possession, 
upon  evidence  that  it  was  signed  and  sealed  by  him. 
Such  a  presumption  does  not  appear  to  have  been  rec- 
ognized elsewhere,  and  it  may  perhaps  be  regarded  as 
based  on  a  recognized  practice,  in  the  jurisdictions 
named,  of  making  delivery  of  the  instrument  by  a  dec- 
laration to  that  effect  in  the  presence  of  witnesses  at 
the  time  of  signing  and  sealing.  The  propriety  of  such 
an  inference  of  delivery  from  the  mere  fact  of  signing 
and  sealing  might  indeed  depend  on  the  particular  cir- 
cumstances of  the  case,  for  instance  on  the  presence  or 
absence  of  the  grantee.  That  the  grantor  signs  and 
seals  the  instrument  in  the  presence  of  the  grantee  may 
justify  an  inference  of  delivery,  while  his  doing  so  in 
the  grantee's  absence  may  not.*'^ 

That  the  attestation  clause,  under  which  the  wit- 
nesses write  their  names,  recites  the  delivery  of  the  in- 
strument, has  occasionally  been  regarded  as  creating 
a  presumption  of  delivery,""  while  a  contrary  view  has 

409;   Jackson  v.  Lamar,  58  Wasti.  Eliz    7;    Levister    v.    Hilliard,    57 

383,    108    Pac.    946.  N.    C.    12.      "If    both    parties    be 

That    the    presumption    is    not  present,  and  the  usual  formalities 

overthrown   by   the   fact  that  the  of  execution   take   place,   and   the 

possession     is     not     affirmatively  contract     is     to     all     appearances 

shown    to    have    originated    prior  consummated   without  any  condi- 

lo  the  grantor's  death,  see  Blair  tions    or    qualifications    annexed, 

v.  Howell,  68  Iowa,  G19,  28  N.  W.  it  is  a  complete  and   valid   deed, 

199;  Melaney  v.  Cameron,  98  Kan.  notwithstanding  it  be  left  in   the 

620,  159  Pac.  19.  c\istody  of  the  grantor."  4  Kent's 

68.  Hall  v.  Bainbridge,  12  Q.  Comm.  455,  quoted  and  applied 
B.  699;  Hope  v.  Harman,  16  Q.  in  Scrugham  v.  Wood,  15  Wend. 
B.  751  note;  Burling  v.  Paterson,  (N.  Y.)  545;  Wallace  v.  Berdell. 
9  Car.  &  P.  570;    Moore  v.  Hazel-  97   N.  Y.  13. 

ton,   9   Allen    (Mass.)    102;    Howe  70.     Xenos    v.    Wickham,    L.    R. 

V.  Howe,  99  Mass.  88.  2  H.  L.  296;   Evans  v.  Grey.  9  L. 

69.  See     Shelton's     Case,     Cro.      R.    Jr.    539;    Clark    v.    Akers,    16 


1752 


Real  Property. 


[§  4G1 


also  been  expressed/^  Such  a  fact  might  properly,  it 
would  seem,  be  regarded  as  evidence  sufficient  to  sup- 
port a  finding  of  delivery,  but  whether  it  should  bo 
regarded  as  creating  a  presumption  of  delivery,  in  the 
sense  of  requiring  a  finding  of  delivery  in  the  absence 
of  countervailing  evidence,  appears  questionable^^ 

Upon  the  question  whether  the  fact  that  an  instru- 
ment is  acknowledged  raises  a  presumption  of  delivery 
the  cases  are  few  and  unsatisfactory.  That  it  does  not 
has  occasionally  been  decided,'^'^  but  there  are  a  greater 
number  of  decisions  to  an  opposite  effect.'^*  The  fact 
that  the  instrument  is  acknowledged  in  the  presence  of 
the  grantee  might  operate  to  create  an  inference  in  this 
regard  which  an  acknowledgment  out  of  his  presence 
would  not  create."^^     Some   weight  might   also  be   im- 


Kan.  166  (semble) ;  Hall  v. 
Sears,  210  Mass.  185,  96  N.  E. 
141;  Diehl  v.  Emig,  G5  Pa.  St. 
320;  Currie  v.  Donald,  2  Wash. 
(Va.)    58. 

71.  Fisher  v.  Hall,  41  N.  Y. 
416;  Rushin  v.  Shield,  11  Ga. 
636;  Hill  v.  McNichoI,  80  Me. 
209,  13  Atl.  883. 

72.  The  presence  of  such  a 
clause  has  been  referred  to  as 
some  evidence  of  delivery.  Den- 
nis V.  Dennis,  119  Mich.  380,  78 
N.  W.  333.  And  see,  apparently 
to  this  effect.  Hill  v.  Merritt,  146 
Ga.  307,  91  S.  E.  204. 

73.  Braun  v.  Monroe,  11  Ky. 
L.  Rep.  324;  Den  v.  Farlee,  21  N. 
J.  L.  279;  Kille  v.  Ege,  79  Pa.  St. 
35. 

In  Alexander  v.  De  Kermel,  81 
Ky.  345,  It  was  decided  that 
acknowledgment  did  not  create 
a  presumption  of  delivery  for  the 
reason  that  the  concurrence  of 
the  grantee  is  needed.  This  is 
however  another  question,  that 
of    the    necessity    of    acceptance. 


See   post,   §    463. 

74.  Boyd  v.  Playback,  63  Cal. 
493;  New  Haven  Trust  Co.  v. 
Camp,  81  Conn.  539,  71  Atl.  788; 
Baker  v.  Updike,  155  111.  54,  39 
N.  E.  587;  Burton  v.  Boyd,  7 
Kan.  17;  Govin  v.  De  Miranda, 
76  Hun  (N.  Y.)  414,  27  N.  Y. 
Supp  1019;  Tarlton  v.  Griggs, 
131  N.  C.  216,  233,  42  S.  E.  591; 
Humphrey  v.  Hartford  Fire  Ins. 
Co.,    15    Blatchf.    (U.    S.)    35. 

Occasionally  the  fact  that  the 
Instrument  was  both  acknowledg- 
ed and  recorded  is  referred  to  as 
raising  a  presumption  of  de- 
livery. Sulzby  v.  Palmer,  194 
Ala.  524,  70  So.  1;  Stephens  v. 
Stephens,  108  Ark.  53,  156  S.  W. 
837:  Felker  v.  Rice,  110  Ark.  70, 
161   S.   W.   162. 

75.  See  Delaplain  v  .Grubb, 
44  W.  Va.  612,  67  Am.  St.  Rep. 
788,  30  S.  E.  201;  Adams  v. 
Baker,  50  W.  Va.  249,  40  S.  E. 
356;  Scrugham  v.  Wood,  15  Wend. 
(N.    Y.)     545. 


<^  461]  Transfer  Inter  Vivos.  1753 

puted  to  the  language  of  tlie  certificate  of  acknowledg- 
ment, an  acknowledgment  in  express  terms  that  the  gran- 
tor delivered  the  instrument  being  perhaps  entitled  to 
more  weight  than  an  acknowledgment  merely  that  he 
executed  it.'*^  The  usage  of  the  community  as  to  the 
time  and  manner  of  making  acknowledgments  might  also 
have  a  hearing  in  this  regard.'"  It  would  seem  on  the 
whole  desirable  that  the  courts  refrain  from  the  as- 
sertion of  a  presumption  of  delivery  from  acknowl- 
edgment, but  rather  leave  it  to  the  jury  to  determine 
w^hether  the  circumstances  of  the  particular  case  show 
an  intention  on  the  part  of  the  grantor  that  the  instru- 
ment shall  be  legally  operative.'*  In  several  cases  it  is 
in  effect  decided  that  a  finding  of  delivery  cannot  be 
based  on  the  fact  of  acknowledgment  alone. '^'^ 

The  question  may  arise  in  this  connection  of  the 
effect  of  a  statute,  such  as  exists  in  a  number  of  states, 
making  an  instrument,  if  duly  acknowledged,  admissible 
without  further  proof  of  execution.  In  one  state  such 
a  statute  has  been  regarded  as  placing  on  the  op- 
posite party  the  burden  of  show^ing  non-delivery,*'^ 
but  this  does  not  appear  to  accord  with  decisions  in 
other  jurisdictions  that  the  authentication  of  a  docu- 
ment sufficient  to  render  it  admissible  in  evidence  does 
not  necessarily  create  a  presumption  of  its  execution.^^ 

76.  See  Blight  v.  Sclieuck,  10  W.  Va.  561,  20  S.  E.  591;  Hutch- 
Pa.  285;  Den  v.  Farlee,  21  N.  J.  ison  v.  Rust,  2  Gratt.  (Va.) 
L.  279;    Hawes  v.  Hawes,  177  HI.      394. 

409,  53  N.  E.  78.  79.     Humphrey  v.  Hartford  Fire 

77.  In  Brann  v.  Monroe,  11  Ins.  Co.,  15  Dlatchf.  (U.  S.)  35; 
Ky.  L.  Rep.  324  it  is  said  that  Wiggins  v.  Lusk,  12  III.  132; 
the  acknowledgment  raises  a  pre-  Baker  v.  Updike,  155  111.  54,  39 
sumption  of  delivery  because  the  N.  E.  587;  Btirton  v.  Boyd,  7 
instrument  ought  to  be  delivered  Kan.  17;  Covin  v.  De  Miranda, 
before  acknowledgment.  This  can  7G  Hun.  414,  27  N.  Y.  Supp.  1019; 
not  well  be  said  in  all  commu-  80.  Tucker  v.  Helgren,  102 
nities.  Minn.  382,   113  N.  W.  912. 

78.  That  the  acknowledgment  81.  Anderson  v.  Cuthbert,  i03 
Is  merely  evidence  bearing  uu  Ga.  767,  30  S.  E.  244;  Scott  v. 
the  question  appears  to  be  recog-  Delany,  87  111.  146;  Ross  v. 
nlzed    in    Furguson    v.    Bond,    39  Gould,    5   Me.    204;    Bogle   v.   Sul- 


1754 


Real  Propeety. 


[§  461 


That  the  grantor  has  the  instrument  recorded,  or 
leaves  it  with  the  proper  official  for  record,  has  been 
frequently  referred  to  as  raising  a  presumption  of  de- 
livery.*^- This  amounts  in  effect  to  a  statement  that 
such  action  on  the  part  of  the  grantor  shows,  primu 
facie,  an  intention  on  his  part  that  the  instrument  shall 
be  legally  operative.  It  is  in  the  ordinary  case  dif- 
ficult to  see  any  object  in  leaving  the  instrument  for 
record,  unless  it  is  intended  that  it  shall  operate  as  a 
conveyance,  and  the  rule  of  presumption  referred  to  ap- 
pears to  be  founded  in  reason.  In  a  few  states  only 
does  this  view  appear  to  have  been  actually  repudiated, 
and  it  is  not  always  clear,  in  these  states,  why  such  an 
effect  is  denied  to  the  grantor's  conduct  in  this  regard.^" 
In  a  very  considerable  number  of  cases  it  is  said  that 
the  action  of  the  grantor  in  having  the  instrument  re- 
corded does  not  show  delivery  if  this  was  without  the 
knowledge  or  consent  of  the  grantee,^'*  but  this  intro- 


livant,  1  Call.  (Va.)  561;  Sieg- 
fried V.  Levan,  6  Serg.  &  R.  308. 
See  3  Wigmore,  Evidence,  §  2135. 
82.  Lewis  v.  Watson,  98  Ala. 
479,  39  Am.  St.  Rep.  82;  Lee 
Hardware  Co.  v.  Johnson,  132 
Ark.  462,  201  S.  W.  289;  Ellis  v. 
Clark,  39  Fla.  714,  23  So.  410; 
Creighton  v.  Roe,  218  111.  619, 
109  Am.  St.  Reip.  310;  Blacken- 
ship  V.  Hall,  233  111.  116,  122  Am. 
St.  Rep.  149,  84  N.  E.  192;  Colee 
V.  Colee,  122  Ind.  109,  17  Am. 
St.  Rep.  345,  23  N.  E.  687;  Hut- 
ton  V.  Smith,  88  Iowa,  238,  55 
N.  W.  326;  Lay  v.  Lay,— (Ky.)  — 
66  S.  W.  371;  Holmes  v.  Mc- 
Donald, 119  Mich.  563,  75  Am. 
St.  Rep.  430;  Griffin  v.  Howey, 
179  Mich.  104,  146  N.  W.  210; 
Ingersoll  v.  Odendahl,  136  Minn. 
428,  162  N.  W.  525;  Chambers  v. 
Chambers,  227  Mo.  262,  137  Am. 
St.  Rep.  567,  127  S.  W.  86;   Mitch- 


ell's Lessee  v.  Ryan,  3  Ohio 
St.  377;  Robbins  v.  Rascoe,  120 
N.  C.  79,  38  L.  R.  A.  238,  56  Am. 
St.  Rep.  774;  Thompson  v.  Jones, 
1  Head  (Tenn.)  574;  Davis  v. 
Garrett,  91  Tenn.  147,  18  S.  W. 
113;  Newton  v.  Emerson,  66  Tox. 
142;  Bjmerland  v.  Ely,  15  Wash. 
101. 

83.  See  Egan  v.  Horrigan,  96 
Me.  46.  In  McManus  v.  Commow, 
10  N.  D.  340,  87  N.  W.  8,  the 
decision  to  this  effect  is  based 
on  an  ill-advised  statute  under- 
taking to  state  what  constitutes 
delivery.  In  Massachusetts  this 
position  appears  to  be  in  part 
the  result  of  the  view  (post,  § 
463)  that  there  must  be  knowl- 
edge of  or  assent  to  the  convey- 
ance on  the  part  of  the  grantee. 
(See  Maynard  v.  Maynard,  10 
Mass.  456;  Samson  v.  Thornton, 
3  Mete.  275),  and   in  part  of  the 


§  461] 


Transfer  Inter  Vivos. 


1755 


duces  another  question,  that  of  the  necessity  of  ac- 
ceptance of  a  conveyance,  which  properly  calls  for 
separate  discussion,^^  and  these  cases  cannot  generally 
be  regarded  as  involving  a  repudiation  of  the  view  that 
the  action  of  the  grantor  in  having  the  instrument  re- 
corded shows,  prima  facie,  an  intention  that  it  shall 
take  effect  as  a  conveyance.  The  presumption  of  de- 
livery, based  on  the  action  of  the  grantor  in  having  the 
instrument  recorded,  is  recognized  as  being  subject  to 
rebuttal  by  evidence  that  he  did  not  intend  the  instru- 
ment to  operate  as  a  conveyance.^-' 

In  several  cases  the  fact  that  the  purpose  of 
the  conveyance  was  merely  to  prevent  the  assertion  or 
collection  of  a  claim  by  a  third  person  against  the  gran- 


notion  that  delivery  of  a  deed 
means  the  physical  transfer  of 
the  instrument.  Hawkes  v.  Pike, 
105  Mass.  560,  7  Am.  St.  Rep, 
554;  Barnes  v.  Barnes,  161  Mass. 
381,  37  N.  E.  379.  The  legisla- 
ture has  now  intervened  by  mak- 
ing the  record  of  a  conveyance 
concllisive  evidence  of  delivery 
in  favor  of  a  bona  fide  purchaser. 
See  Rev.  Laws,  c.   127,   §   5. 

84.  Younge  v.  Guilbeau,  3 
Wall.  (U.  S.  636,  18  L.  Ed.  262; 
Parmelee  v.  Simpson,  5  Wall.  (U. 
S.)  81,  718  I..  Ed.  542;  Knox  v. 
Clark,  15  Colo.  App.  356,  62  Pac. 
334;  Sullivan  v.  Eddy,  154  111. 
199,  40  N.  E.  482;  Wilenou  v. 
Handlon,  207  111.  104,  69  N.  E. 
892;  Vaughan  v.  Godman.  94 
Ind.  191;  O'Connor  v.  O'Connor, 
100  Iowa,  476,  69  N.  W.  676; 
Alexander  v.  De  Kermel,  81  Ky. 
345;  Oxnard  v.  Blake,  45  Me. 
602;  Maynard  v.  Maynard,  10 
Mass.  456,  6  Am.  Dec.  146;  Sam- 
son V.  Thornton  3  Mete.  (Mass.) 
275,  37  Am.  Dec.  135;  Bullitt  v. 
Taylor,  34  Miss.  708,  69  Am.  Dec. 


412;  Cravens  v.  Rossiter,  116  Mo. 
338,  38  Am.  St.  Rep.  606;  Derry 
Bank  v.  Webster,  44  N.  H.  264; 
Jackson  v.  Phipps,  12  .lohns.  (N. 
Y.)  418;  King  v.  Antrim  Lumber 
Co.,— Okla.— 172  Pac.  958;  Bogard 
v.  Barhan,  56  Ore.  269,  108  Pac. 
214. 

85.  Post,    §    463. 

86.  Humiston  v.  Preston,  66 
Conn.  579.  31  Atl.  544;  Jones  v. 
Bush,  4  Harr.  (Del.)  1;  Ellis  v. 
Clark,  ;59  Fla.  714,  23  So.  410; 
Sullivan  v.  Eddy,  154  111.  199,  40 
N.  E.  482;  Vaughan  v.  Vaughan, 
94  Ind.  19;  Hutton  v.  Smith,  8» 
Iowa,  238,  55  N.  W.  326;  Hoga- 
done  V.  Grange  Mut.  Fire  Ins. 
Co.,  133  Mich.  339,  94  N.  W 
1045;  Barras  v.  Barras.  192  Mich. 
584,  159  N.  W.  147;  Babbitt  v. 
Bennett,  68  Minn.  260,  71  N.  W. 
22;  Metcalfe  v.  Brandon,  60  Mi.ss. 
685;  Boardman  v.  Dana.  34  Pa. 
St.  252;  Thompson  v.  Jones,  1 
Head  (Tenn.)  576;  Walsh  v. 
Vermont  Mut.  Fire  Ins.  Co., 
54    Vt.   351. 


1756  Eeal  Property.  [§  461 

tor  and  not  to  vest  a  beneficial  interest  in  the  grantee, 
has  been  regarded  as  prechiding,  or  at  least  as  tending 
to  preclude,  any  inference  of  delivery  from  the  grantor 's 
action  in  recording  the  instrument.^^  Such  a  view  ap- 
pears, however,  to  be  open  to  question.  The  instrument 
cannot  operate  in  any  degree  for  his  protection  unless 
it  operates  as  a  conveyance,  and  the  fact  that  he  de- 
sires protection  would  seem  to  be  rather  an  additional 
reason  for  regarding  the  instrument  as  having  become 
operative  by  delivery.^^  Even  conceding  that  his  pur- 
pose to  avoid  payment  of  claims  would  show  that  there 
was  no  delivery,  it  might  be  questioned  whether  he, 
or  one  claiming  in  his  right,  should  be  allowed  to  assert 
that  the  ordinary  inference  from  his  use  of  the  record- 
ing system  should  not  be  drawn,  because  he  made  such 
use  for  purposes  of  deception. 

That  the  grantor,  after  having  the  instrument  re- 
corded, himself  obtains  it  from  the  recording  officer, 
instead  of  leaving  it  with  the  latter  to  be  called  for 
by  the  grantee,  does  not  appear  to  have  any  proper 
bearing  upon  the  question  of  the  grantor's  intention  in 
having    it    recorded.^*^      Even    though    there    were    the 

87.  Coulson  v.  Scott,  167  Ala.  Chambers,  227  Mo.  262,  137  Am. 
606,  52  So.  436;  Union  Mut.  Life  St.  Rep.  567,  127  S  W.  86; 
Ins.  Co.  V.  Campbell,  95  111.  Decker  v  Stansberry,  249  111. 
267,  35  Am.  Rep.  166;  Weber  v.  487,  Ann.  Cas.  1912A,  227,  94 
Christen,    121    111.    91,    2    Am.    St.  N.    E.    940. 

Rep.   68,   11  N.   E.   898;    Vaughan  89.     See    Lewis    v.    Watson,    98 

V.  Godman,  94  Ind.  19;    Davis  v.  Ala.    480,   22  L.   R.   A.    297;    Rus- 

Davis,    92    Iowa,    147,    60    N.    W.  sell    v.    May,    77    Ark.    89,    90    S. 

507;    Egan    v.    Horrigan,    96    Me.  W.  617;   Moore  v.  Giles,  49  Conn. 

46,     51     Atl.     246;     Hogadone    v.  570;     Allen    v.    Hughes,    106    Ga. 

Grange    Mut.    Fire    Ins.    Co.,    133  775.  32  S.  E.  927;   Colee  v.  Colee, 

Mich.  339,  94     N.  W.  1045;   Hoop-  122    Ind.    109,    17    Am.    St.    Rep. 

er    V.    Vanstrum,    92    Minn.    406,  345.    23    N.    E.     687;     Collins    v. 

100    N.    W.    229;    Koppelmann    v.  Smith,    144   Iowa,  200,  122   N.  W. 

Koppelmann,    94    Tex.    40,    57    S.  839;   Lay  v.  Lay,   (Ky.),  66  S.  W. 

W.     570;     Elmore    v.     Marks,     39  371;     Mitchell's    Lessee    v.    Ryan, 

Vt.  538.  3     Ohio     St.     377;     Thompson    v. 

88.  See  Corley  v.  Corley,  2  Jones,  1  Head.  (Tenn.)  576. 
Cold,    (Tenn.)    520;    Chambers   v.  But    Weber    v.    Christen,    121    111. 


§  461]  Transfer  Ixtee  Vivos.  1757 

fullest  intention  on  the  part  of  tlie  grantor  that  the 
instrument  should  become  legally  effective,  he  might 
well  desire  to  have  it  returned  to  him  to  hold  tempo- 
rarily. The  fact,  however,  that  the  grantor  not  only 
obtains  the  instrument  after  its  record,  but  retains  it 
in  his  possession,  has  been  regarded  as  showing  that  it 
has  not  been  delivered.^ *^  Conceding  that  the  record  of 
the  instrument  by  the  grantor  is  sufficient  in  itself  to 
make  a  prima  facie  showing  of  delivery,  it  is  not  entirely 
clear  why  his  subsequent  retention  of  the  instrument 
should  be  regarded  as  showing  a  different  intention. 
That  the  grantor  has  the  instrument  recorded  might 
properly,  it  is  submitted,  overcome  any  inference  of 
non-delivery  from  his  subsequent  possession  of  the  in- 
strument, since,  as  before  remarked,  it  is  difficult  to 
conceive  of  any  object  in  having  it  recorded  other  than 
that  it  should  be  legally  operative. 

It  being  conceded  that  a  manual  transfer  of  the 
instrument  by  the  grantor  directly  to  the  recording 
officer  shows,  prima  facie,  an  intention  that  it  shall 
operate  as  a  conveyance,  it  would  seem  that  his  manual 
transfer  of  the  instrument  to  another,  to  be  by  the 
latter  handed  to  the  recording  officer,  might  likewise 
show  such  an  intention,  and  there  are  decisions  to  this 
effect.^^ 

91,    2    Am.    St.    Rep.    68,    11    N.  Railroad     Co.     v.     Wheeler,     125 

E.    893,    is   apparently    contra.  Ala.    538,    28    So.    38;    Zeigler    v. 

90.  Weber  v.  Christen,  121  Daniel.  128  Ark.  40:{,  194  S. 
111.  91,  2  Am.  St.  Rep.  68,  11  N.  W.  246;  Valter  v.  Blavka,  195 
E.  893;  Hutton  v.  Smith,  88  111.  610,  63  N.  E.  499;  In  re 
Iowa,  238,  55  N.  W.  326;  Jourdan  Bell's  Estate,  1^0  Iowa,  725, 
V.  Patterson,  102  Mich.  602,  61  130  N.  W.  798;  Tngersoll  v. 
N.  W.  64;  Babbitt  v.  Bennett,  Odendahl,  136  Minn.  428,  162  N. 
68  Minn.  260,  71  N.  W.  22;  El-  W.  325;  Bobbins  v.  Rascoe,  120 
more  v.  Marks,  39  Vt.  538;  Fair  N.  Car.  79,  38  L.  R.  A.  238,  58 
Haven  Marble  &  Marbleized  Slate  Am.  St.  Rep.  774;  Thompson  v. 
Co.  V.  Owens,  69  Vt.  246,  37  Atl.  .lones,  1  Head  (Tcnn.)  576; 
749.  See  King  v.  Antrim  Lumber  Bates  v.  Winters,  138  Wis.  073, 
Co.,  — Okla.— ,  172  Pac.  958.  120   N.   W.    498. 

91.  Tennessee     Coal,     Iron     & 

2  R.  P.— 36 


1758  Real  Peopebty.  [§  461 

It  has  been  frequently  asserted  that  the  mere  fact 
that  the  instrument  is  of  record  raises  a  presumption  of 
delivery,  without  any  reference  being  made  to  the 
identity  of  the  person  who  had  it  recorded.-*-  The  cases 
do  not  ordinarily  indicate  the  basis  of  this  presump- 
tion, but  occasionally**-^  it  has  been  regarded  as  based, 
to  some  extent  at  least,  upon  the  statutory  provisions, 
existent  in  most  of  the  states,^^  making  an  instrument, 
duly  acknowledged  (or  proved),  and  recorded,  or  a 
copy  thereof,  admissible  without  further  proof.  But 
this  latter  view  does  not  appear  to  accord  with  the 
authorities,  before  referred  to,^^  that  the  authentica- 
tion of  an  instrument  sufficient  to  justify  its  admission 
in  evidence  does  not  create  a  presumption  of  its  due 
execution,  A  more  satisfactory  reason  for  inferring 
delivery  from  the  fact  that  the  instrument  is  of  rec- 
ord w^ould  seem  to  be  the  probability  that  it  was  placed 
on  record  either  by  the  grantor,  thus  indicating  an 
intention  on  his  part  to  make  it  operative,^'^  or  by  the 
grantee,  thus  indicating  that  it  was  in  his  possession, 
this  itself  raising  a  presumption  of  delivery.^'^  Any 
presumption  arising  from  the  mere  fact  of  record  might 
be    overthrown    by   evidence    that   the   instrument   was 

92.     Estes      V.      German      Nat.  24;   Whiting  v.  Hoglund,  127  Wis. 

Bank,    62    Ark.    7,    34    S.    W.    85;  135,     7    Ann.     Cas.    224,     106     N. 

Parker    v.    Salmons,    101   Ga.    160,  W.    391;        Laughlin    v.    Calumet 

65    Am.    St.    Rep.    291;     Spencer  &    Chicago     Canal    &    Dock    Co., 

V.    Razor,    251    111.    278,    96    N.    E.  13  C.  C.  A.  1,  65  Fed.  441. 

300;    Witt  V.  Witt,  174  Iowa,  173,  93.     See   Napier   v.    Elliott.    177 

156     N.     W.     321;      Maynard     v.  Ala.    113,    58    So.    435;    MitcheU's 

Maynard,   145  Ky.   197,  140  S.  W.  Lessee  v.   Ryan,    3   Ohio    St.    377; 

156;     Balin    v.     Osoba,     76     Kan.  Jackson  v.  Perkins,  2  Wend.    (N. 

234,     91     Pac.     57;      Patrick     v.  Y.)     317;     Goodlett    v.    Goodman 

Howard,    47    Mich.    40,    10   N.    W.  Coal    &   Coke    Co.,    192    Fed.    775, 

71;     Sweetland    v.    Buell,    164    N,  113   C.   C.   A.   61. 

Y.    541,    79    Am.    St.    Rep.    676;  94.     These     statutes     are     sum- 

Stephenson    v.   Van    Blokland,    60  marized  in  3  Wigmore,  Evidence, 

Ore.     247,     118     Pac.     1026;     Mc-  §§     1651,    1676. 

Daniel  v.  Anderson,  19  S.  C.  211;  95.     Ante,  this  section,  note  81. 

Morgan    v.    Morgan,    82    Vt.    243,  96.     Ante,  this  section,  note  82. 

137    Am.    St.    Rep.    1006,    73    Atl.  97.     Ante,  this  section,  note  67. 


§  461]  Transfer  Inter  Vivos.  1759 

not  placed  on  record  by  the  authority  of  either  the 
grantor  or  grantee,^^  or  by  other  evidence  to  the  eifect 
that  there  was  no  delivery,'^'^ 

That  the  parties  to  the  instrument  acted  as  if  the 
title  to  the  property  had  passed  to  the  grantee  named  has 
been  regarded  as  showing  or  tending  to  show  delivery.^ 
In  regard  to  this  it  may  be  conceded  that  the  fact 
that  the  grantor  named  acts  as  if  the  title  had  passed 
to  the  grantee  named  would  certainly  appear  to  be 
strong  evidence  of  his  intention  that  the  instrument 
should  operate  to  pass  the  title.^  That  the  grantee 
named  so  acts  would  appear  to  be  strong  evidence  of 
his  acceptance  of  the  conveyance,  so  far  as  an  accep- 
tance may  be  regarded  as  necessary  in  the  particular 
jurisdiction,"  but  it  does  not  seem  to  have  any  par- 
ticular relevancy  to  the  question  whether  the  grantor 
has  delivered  the  instrument,  assuming  that,  as  is 
believed  to  be  the  case,  the  cjuestion  of  acceptance  is 
entirely  distinct  from  that  of  delivery. 

Voluntary  settlement.  It  was  said  by  Chancel- 


lor  Kent    in    a    quite    early  New    York   case,"-''    that    a 
voluntary  settlement  is  valid,  even  though  the  grantor 

98.  Bouvier-Iaeger    Coal    Land  10  N.   W.   71. 

Co.    V.    Sypher,    186    Fed.    644.  2.     See     Corley     v.     Corley,     2 

99.  Equitable  Mtge.  Co.  v.  Poldw.  (Tenn.)  520;  Donahue 
Brown,  105  Ga.  474,  30  S.  E.  687:  v.  Sweeny,  171  Cal.  388,  153  Pac. 
McCune  v.  Goodwillie,  204  Mo.  708;  Tweedale  v.  Barnett,  172  Cal. 
306,  102  S.  W.  997;  Hathaway  v.  271,  156  Pac.  483;  Tupper  v. 
Cook,   258   111.   92,   101   N.   E.  227.  Foulkes,  9  C.  B.  N.  S.  797.     That 

1.     Gould     V.     Day,     94    U.     S.  the    grantor    treats    the    land    as 

405,  24  L.  Ed.  232;  In  re  Jackson  his     own,     after     having     signed 

Brick   &  Tile   Co.,   189   Fed.   636;  a  conveyance  thereof,  has  been  re- 

Cribbs    v.    Walker,    74    Ark.    104,  garded    as   tending    to    show    that 

85    S.    W.    244;    Bruner    v.    Hart,  the  conveyance  was  not  delivered. 

59    Fla.    171,    51    So.    593;     Rode-  Little  v.   Eaton,   267   111.  62;i,   108 

meier   v.    Brown,    109    111.   347,    61  N.   E.   727. 

Am.    St.   Rep.   176,   48   N.    E.   468;  3.     Post,  §  463. 

Bunnell  v.   Bunnell,   111   Ky.   566,  3a.     Souverbye     v.      Ardcii,     1 

64    S.    W.    420,     65     S.     W.    607;  .Tohns.   Ch.   240. 
Patrick   v.    Howard.   47   Mich.    40, 


1760  Real  Property.  [§  461 

retains  possession  of  the  instrument,  in  the  absence  of 
other  circumstances  to  show  that  it  is  not  intended  to 
he  ahsohite.  In  view  of  the  fact,  w^ell  recognized  at  the 
present  day  if  not  at  that  time,  that  not  only  a  volun- 
tary settlement,  but  any  conveyance,  may  be  effective  al- 
though the  physical  possession  of  the  instrument  re- 
mains in  the  grantor,^  the  statement  referred  to  with 
reference  to  voluntary  settlements  appears  to  have  no 
l^articular  significance.  It  has  however  been  quoted 
from  time  to  time,^  and  it  appears  to  be  responsible 
for  the  view,  asserted  in  two  or  three  states,  that  in 
the  case  of  a  voluntary  settlement,  especially  when  made 
in  favor  of  an  infant,  the  law  will  make  stronger  pre- 
sumptions in  favor  of  delivery  than  in  other  cases.'* 
In  one  state  it  has  been  said  that  in  the  case  of  such 
a  settlement  the  burden  of  proof  is  on  the  grantor 
to  show  that  there  was  no  delivery/  Why  there  should 
be  a  relaxation  of  the  requirements  of  proof  of  delivery 
in  the  case  of  such  a  settlement  is  not  entirely  clear. 
It  has  been  said  that  ''the  same  degree  of  formality  is 
never  required,  on  account  of  the  great  degree  of 
confidence  which  the  parties  are  presumed  to  have  in 
each  other,  and  the  inability  of  the  grantee,  frequently, 
to  take  care  of  his  own  interests."^  As  a  matter  of  fact, 
however,  no  formality  is  necessary  in  any  case  for  the 
delivery  of  a  conveyance,  and  conceding  the  necessity 

4.  Ante,   this   section,   note   43.       v.    Schooler    258    Mo.    83,    167    S. 

5.  See    WaUace    v.    Berdell,    97      W.  444. 

N.     Y.     13;     Bryan     v.     Wash,     7  7.     Bryan  v.   Wash,   7   lU.    557; 

111.  557;   1  Perry,  Trusts,  §  103.  Winterbottom     v.     Pattison,     152 

6.  Miller  v.  Meers,  155  111.  .  111.  334,  38  N.  E.  1050;  Abbott 
284,  40  N.  E.  577;  Ln tinier  v.  v.  Abbott,  189  111.  488,  82  Am. 
Latimer,  174  111.  418,  51  N.  E.  St.  Rep.  472.  But  in  Hawes  v. 
548;  Abbott  v.  Abbott,  189  111.  Hawes,  177  111.  409,  53  N.  E.  78, 
488,  82  Am.  St.  Rep  472;  Baker  the  necessity  of  a  showing  of 
V  Hall,  214  111.  364,  73  N.  E.  delivery  even  in  the  case  of  a 
351;  Colee  v.  Colee,  122  Ind  voluntary  settlement  is  clearly 
109,   17   Am.    St.   Rep.   345,    23    N.  recognized. 

E.    687;    Crowder    v.    Searoy.    103  8.     Bryan  v.  Wash,   7  111.  557. 

Mo.    97,    15    S.    W.    346;    Schooler 


§  461] 


Traxsfer  Inter  Vivos. 


1701 


of  delivery,  the  reasons  suggested  for  dispensing  with 
the  ordinary  proof  thereof  in  this  particular  case  ap- 
pear somewhat  inadequate.  Indeed  the  fact  that  the 
settlement  is  voluntary,  a  gift  merely,  might  well  be 
regarded  as  requiring  the  strictest  proof  of  delivery.^ 

Date    of    delivery.      Since    an    instrument    of 


conveyance  operates  to  transfer  the  title  to  the  property 
only  upon  delivery,  the  ascertainment  of  the  date  of 
delivery  is  frequently  a  matter  of  importance.  There 
is  a  rebuttable  presumption  that  the  instrument  was 
delivered  on  the  day  on  which  it  is  dated,^*^  provided, 
at  least,  it  is  not  acknowledged,  or  is  not  acknow- 
ledged  on  a  different  date.  When  the  date  of  the  in- 
strument differs  from  the  date  of  acknowledgment,  the 
delivery  is  by  some  courts  presumed  to  have  taken 
place    on    the    former    date,^^    and    by    some    on    the 


9.  See  Jamison  v.  Craven,  4 
Del.  Ch.  311;  Hooper  v.  Van- 
strum,  92  Minn.  406,  100  N.  W. 
229. 

10.  Williams  v.  Armstrong, 
130  Ala.  389,  30  So.  553;  Gordon 
V.  City  of  San  Diego,  108  Cal. 
264,  41  Pac.  301  (statute);  Kim- 
ball V.  Chicago.  253  111.  105,  97 
N.  E.  257;  Sweetser  v.  Lowell, 
33  Me.  446;  Schweigel  v.  L.  A. 
Shakman  Co.,  78  Minn.  142,  80 
N.  W.  871,  81  N.  W.  529;  Blair 
State  Bank  v.  Bunn,  61  Neb. 
464,  85  N.  W.  527;  Crossen  v. 
Oliver,  37  Ore.  514,  61  Pac.  885; 
State  V.  Dana,  59  Wash.  30,  109 
Pac.  191;  Douthat  v.  Roberts, 
73  W.  Va.  358,  80  S.  E.  819; 
Wheeler  v.  Single,  62  Wis.  380, 
22  N.  W.  569. 

11.  Smith  V.  Scarbrough,  61 
Ark.  104,  32  S.  W.  382;  Smiley 
V.  Fries,  104  111.  416;  Lake  Erie 
etc.  R.  Co.  V  Whitham,  155  III. 
514,     46    Am.     St.    Rep.     355,     28 


L.  R.  A.  612;  Scobey  v.  Walker, 
114  Ind..  254,  15  N.  E.  674; 
Crabtree  v.  Crabtree,  136  Iowa, 
630,  113  N.  W.  923,  15  A.  &  E. 
Ann.  Cas.  149:  McConnell  v. 
Brown,  6  Lltt.  (Ky.)  459;  Ford 
V.  Gregory,  10  B.  Mon.  (Ky.) 
175;  Smith  v.  Porter,  10  Gray. 
(Mass.)  66;  Conley  v.  Finn,  171 
Mass.  70,  68  Am.  St.  Rep.  399. 
But  see  Mighill  v.  Town  of  Row- 
ley, 224  Mass.  586,  113  N.  E. 
569;  People  v.  Snyder,  41  N.  Y. 
397;  Harriman  Land  Co.  v.  Hil- 
ton, 121  Tenn.  308,  120  S.  W. 
162;  Kirby  v.  Cartwright,  48 
Tex..  Civ.  App.  8,  106  S.  W. 
742;  Beall  v.  Chatham,  (Tex. 
Civ  App.),  117  S.  W.  492;  Har- 
man  v.  Oberdorfer,  33  Gratt. 
(Va.)  497.  In  Calligan  v.  Cal- 
ligan,  259  111.  52,  102  N.  E.  247. 
it  is  decided  that  the  deed  in 
presumed  to  have  been  delivered 
on  the  day  of  its  date,  thongli 
not     acknowledged     till     a     later 


17()2  Real  PROPERTir.  [^  462 

latter.^-  This  diiference  of  view  as  to  whether  the  date  of 
acknowledgment  should  control,  in  the  absence  of  other 
evidence,  appears  to  be  the  result,  to  a  very  considerable 
extent,  at  least,  of  a  difference  of  view  as  to  the 
probability  of  delivery  before  acknowledgment,^-"  and 
the  usage  of  different  communities  in  this  regard  might 
well  differ. 

§  462.  Conditional  delivery.  The  delivery  of  a 
conveyance,  or  of  any  other  instrument  which  takes 
effect  by  delivery,  may  be  conditioned  upon  the  per- 
formance of  some  act  or  the  occurrence  of  some  event. 

A  conditional  delivery  is  usually  referred  to  as 
a  delivery  "in  escrow,"  or  it  is  said  that  an  instrument 
conditionally  delivered  is  delivered  as  an  "escrow." 
These  forms  of  expression  have  the  sanction  of  cen- 
turies of  usage,  and  yet  it  may  be  questioned  whether 
they  are  not  calculated  to  give  a  wrong  impression  as 
to  such  a  delivery.  The  word  "escrow"  meant  origi- 
nally, it  appears,  a  piece  or  roll  of  parchment  or  paper, 
and  its  use  in  this  connection  doubtless  has  reference 
to  the  fact  that  an  instrument  conditionally  delivered 
is  not  immediately  operative.  But  an  instrument  in 
the  form  of  a  deed,  which  is  conditionally  delivered,  is 
delivered  as  a  deed,  an  instrument  capable  of  legal 
operation,  and  not  as  a  mere  piece  of  paper.  Other- 
wise it  could  not  become  legally  operative  upon  the 
satisfaction  of  the  condition.  In  the  case  of  a  con- 
ditional delivery,  a  delivery  in  escrow,  the  maker  of  the 
instrument  in  effect  says :    "I  now  deliver  this  as  my 

date,   if  the  acknowledgment  waa  336,   122   N.   W.   780;    Fontaine  v. 

not    necessary   to    the    passing    of  Boatmen's  Sav.  Inst.,  57  Mo.  552; 

title,   and  only  then.  Barber  Asphalt  Pav.  Co.  v.  Field, 

12.     Kitchener     v.     Jehlik,     85  174  Mo.  App.   11,  161  S.  W.   364; 

Kan.   684,   118  Pac.   1058;    Loomis  Bolaskey     v.     Furey,     12     Phila. 

V.  Pingree,  43  Me.  299    {semble) ;  (Pa.)      428      (semble);     Kent     v. 

Henderson    v.    Baltimore,    8    Md.  Cecil,     (Tex.    Civ.    App.),    25     S. 

352    (semble);    Blanchard    v.    Ty-  W.  715. 

ler,    12    Mich.    339,    86    Am.    Dec.  12a.     Atite,    this    section,     note 

57;     Miller    v.    Peter,    158    Mich.  77. 


§  462]  Transfer  Inter  Vivos. 


1763 


act  and  deed,  provided  such  a  condition  is  satisfied," 
and  not  '*I  now  deliver  this  as  a  mere  piece  of  paper, 
provided  such  a  condition  is  satisfied."  The  use  of 
the  word  ''escrow"  in  this  connection  is,  however,  so 
thoroughly  established  that  any  question  as  to  its 
propriety  is  necessarily  futile,  and  the  expressions 
''conditional  delivery"  and  "delivery  in  escrow"  will 
here   be  used  for  the  most  part  interchangeably. 

Physical  transfer.     Tlie  conception  of  a   con- 
ditional delivery,   a   delivery  in   escrow,   as   ordinarily 
presented  in  the  older  English  books,  is  of  a  transfer 
of  the  possession  of  the  instrument  to  a  third  jierson, 
as  custodian  or  depositary,  with  directions  to  him  to 
hand  it  to  the  grantee  or  obligee  named  upon  the  satis- 
faction of  the  condition,'"'  and  so  in  this   country  the 
cases  have  tended  to  emphasize  the  matter  of  the  phys- 
ical transfer  of  the  instrument.     If,  however,  the  de- 
livery of  a  deed  is,  as  appears  to  be  generally  agreed, 
merely  the   expression,   either  by  word   or   act,   of   an 
intention  that  the  instrument  shall  have  a  legal  opera- 
tion,  conditional   delivery   would    seem   properly   to   be 
merely  an   expression  of  an  intention  that  the  instru- 
ment  sliall  have   a  legal  operation   provided   a   certain 
condition   is   satisfied,   and  adopting  such   a  view,   the 
physical    transfer    or    custody    of    the    instrument    be- 
comes of  minor  importance.     An  absolute  delivery  can 
be  made  without  a  iihysical  transfer  of  the  instrument,'^ 
and   it   is    difficult    to    see   why   a    conditional    deliverv 
cannot  be  so  made.     There  are  in  England  judicial  ex- 
pressions  to   the   effect  that  it  can.''""'     The  contrary 
view  is   a  relic  of  the  primitive  formalism   whicli   at- 
taches  some   peculiar   efficacy   to   the   physical   transfer 
of  the  instrument,  as  involving  a   symbolical   transfer 
of  the  property  described  therein. 

13.  Perkins,  Conveyancing,  §§  15-16.  See  Gudgen  v.  Bessett. 
142-144;  Sheppard's  Touchstone,  6  EH.  &  Bl.  986;  Xenos  v.  Wlck- 
59;   2  Bl.  Comm.  307.  ham,   L.    R.    2    H.    L.    29(1. 

14.  Antr,    §    461,    notes    42,    43. 


17()4: 


Real  Property. 


[§  462 


The  manual  transfer  of  the  instrument,  which  is 
ordinarily  assumed  to  be  essential  to  a  conditional 
delivery,  must,  according  to  the  authorities  in  this 
country,  be  to  a  person  other  than  the  grantee,  it  being 
held  that  if  the  grantor,  intending  to  make  a  conditional 
delivery,  hands  the  instrument  to  the  grantee,  there  is 
necessarily  an  absolute  delivery.^^  In  England  the 
older  authorities  are  generally  to  the  same  effect,^^  but 
there  are  occasional  modern  dicta  to  the  contrary.^'' 
That  the  mere  physical  transfer  of  the  instrument 
should,  in  any  jurisdiction,  be  allowed  to  override  the 
grantor's  explicit  declaration  of  intention  that  the  in- 
strument shall  not  be  immediately  operative,  is  a 
striking  illustration  of  the  persistence  of  the  primitive 
formalism  before  referred  to.-^    An  instrument  mav  be 


17.  Alabama  Coal  &  Coke  Co. 
V.  Gulf  Coal  &  Coke  Co.,  165 
Ala.  304,  51  So.  570;  Campbell 
V.  Jones,  52  Ark.  493,  6  L.  R.  A. 
783;  Mowry  y.  Heney,  86  Cal. 
471,  25  Pac.  17;  Larsb  v.  Boyle, 
36  Colo.  18,  86  Pac.  1000;  Walker 
V.  Warner,  31  Dist.  Colo.  App.  76; 
Duncan  v.  Pope,  47  Ga.  445; 
Mays  V.  Shields,  117  Ga.  814,  45 
S.  E.  68;  Whitney  v.  Dewey,  10 
Idaho,  633;  69  L.  R.  A.  572; 
McCann  v.  Atherton,  106  111.  31; 
Potter  V.  Barringer,  236  111.  224, 
86  N.  E.  233;  Robinson,  Norton 
&  Co.  V.  Randall.  147  Ky.  45,  143 
S.  W.  769;  Hubbard  v.  Greeley, 
84  Me.  340,  17  L.  R.  A.  511,  24 
Atl.  799;  Ward  v.  Lewis,  4  Pick. 
(Mass.)  518;  Arnold  v.  Patrick, 
6  Paige  (N.  Y.)  310;  Worrall  v. 
Winn,  5  N.  Y.  229,  55  Am.  Dec. 
330:  Gaston  v.  City  of  Portland, 
16  Ore.  255.  19  Pac.  127;  Keenan 
&  Wade  V.  City  of  Trenton,  130 
Tenn.  71,  Ann.  Cas.  1916B, 
519,  168  S.  W.  1053;  Miller  v. 
Fletcher,     27     Gratt.     (Va.)     403, 


21  Am.  St.  Rep.  356;  Richmond 
V.  Morford,  4  Wash.  337,  30  Pac. 
241,  31  Pac.  513;  Gaffney  v. 
Stowers,  73  W.  V».  420,  80  S. 
E.  501.  But  see  Wilson  v.  Wil- 
son, 158  567,  49  Am.  St.  Rep. 
176,  41  N.  E.  1007;  Stanley  v. 
White,  160  111.  605,  43  N.  E.  729. 

18.  They  are  cited  in  13  Vin. 
Abr.  Fait  (O.);  Norton,  Deeds, 
17;  10  Halsbury's  Laws  of  Eng- 
land, p.  388.  See  Co.  Litt.  36a; 
Sheppard's  Touchstone,  59. 

19.  Watkins  v.  Nash,  L.  R. 
20  Eq.  262;  London  Freehold 
and  Leasehold  Property  Co.  v. 
Suffield,  L.  R.  2  Ch.  608,  at  p. 
621;  Hudson  v.  Pevett,  5  Bing. 
368;  Bower  v.  Burdekin,  11  M. 
&  W.  128,  146. 

20.  See  4  Wigmore,  Evidence, 
§§  2405,  2408.  This  writer  re- 
marks in  reference  to  the  case 
of  Hawksland  v.  Gatchel  Cro. 
Eliz.  835,  which  clearly  decided 
that  delivery  was  conditional,  if 
so  intended,  although  the  instru- 
ment  was  handed  to  the  obligee, 


§  462]  Transfer  Inter  Vivos.  17G5 

handed  to  the  grantee  or  obligee  without  effecting  any 
delivery  whatsoever,^!  and  it  is  difficult  to  see  why  it 
cannot  be  so  handed  without  effecting  more  than  a 
conditional  delivery.  So  far  as  the  danger  of  misleading 
an  innocent  third  person  is  concerned,  the  danger  is  as 
great  when  there  is  no  delivery  as  when  the  delivery 
is  conditional  only.  The  view  referred  to  has,  by  a 
number  of  courts,  been,  repudiated  in  connection  with 
bills  and  notes,  with  the  effect  of  upholding  a  condi- 
tional delivery  thereof  in  spite  of  a  manual  transfer 
to  the  payee,^^  and  the  same  considerations  in  favor  of 
its  repudiation  would  seem  to  apply  in  the  case  of  deeds 
of  conveyance.  A  tendency  to  break  in  upon  such  a 
rule  is  indicated  by  decisions  that  it  does  not  ai)})ly 
if  the  instrument  shows  on  its  face  an  intention  that 
others  than  those  who  have  executed  it  shall  join  in 
its  execution  before  it  shall  become  operative,^'  as  well 
as  by  decisions  that  the  grantor  can  hand  the  instru- 
ment to  the  grantee,  to  be  in  turn  handed  by  the  latter 
to  a  third  person  to  hold  it  in  escrow,  without  thereby 
rendering  it  immediately  operative.^^ 

Occasional  decisions  to  the  effect  that  an  instrument 
cannot  be  regarded  as  conditionally  delivered  if  it  is 
handed  to   the   grantee's  agent-'''   are   based   upon   the 

"the     authority     and     vogue     of  North  American  Fire  Ins.  Co.,  23 

Coke's    and    Sheppard's    writing.s  Wend.    (N.    Y.)    43,    35    Am.    Dec. 

obscured    and    suppressed    prema-  543;   Brown  v.  Reynolds,  5  Sneed, 

•turely     this     progressive     concep-  (Tenn.)     639.      But    see    Bramau 

tion."  V.   Bingham,   26   N.   Y.  491,   for  a 

21.  Ante,  §  461,  note  47.  (lictum  contra. 

22.  1  Daniel,  Negotiable  In-  25.  Duncan  v.  Pope,  47  Ga. 
struments  (6th  ed.),  §  68a;  Nor-  445;  Stewart  v.  Anderson,  59 
ton.   Bins   &   Notes    (3rd   ed.)    71.  Ind.     375;     Hubbard    v.    Greeley, 

23.  Shelby  v.  Tardy,  84  Ala.  84  Me.  340,  17  L.  R.  A.  511; 
327,  4  So.  276;  Ward  v.  Churn,  Wier  v.  Batdorf,  24  Neb.  83,  :i8 
18  Gratt.  (Va.)  80,  98  Am.  Dec.  N.  W.  22;  Worrall  v.  Munn,  5  N. 
749;  Wedlinger  v.  Smith,  75  Va.  Y.  229,  55  Am.  Dec.  330;  Ordinary 
309,  40  Am.   Rep.   727.  v.    Thatcher,    41    N.    J.    L.    403    32 

24.  Cherry  v.  Herring,  83  Ala.  Am.  Rep.  225;  Bond  v.  Wilson, 
458,  3   So.  667;   Fairbanks  v.  Met-  129  N.  C.  325,  40  S.  R.  179. 

calf,     8     Mass.     230;      Gilbert     v. 


1766  Keal  Property.  [§  462 

assumption  that  such  a  manual  transfer  to  the  grantee's 
agent  is  in  effect  a  transfer  to  the  grantee  himself. 
Such  an  assumption  is  justified,  however,  only  when  the 
transfer  is  to  the  grantee's  agent  as  such;  that  is,  the 
mere  fact  that  for  other  purposes  one  is  the  grantee's 
agent  does  not  render  him  such  agent  for  the  purpose  of 
holding  possession  of  the  instrument,  and  it  has  ac- 
cordingly been  decided  in  a  number  of  cases  that  there 
was  a  valid  conditional  delivery  although  the  person  to 
whom  the  instrument  was  handed,  to  hold  until  satis- 
faction of  the  condition,  was  for  some  purposes  the 
agent  of  the  grantee.^*^ 

Occasional  statements  to  the  effect  that  an  instru- 
ment which  has  been  handed  to  the  grantor's  agent 
cannot  be  regarded  as  having  been  delivered  condi- 
tionally^'^ appear  to  be  open  to  question.  They  are,  no 
doubt,  an  outgrowth  of  the  view  that  there  can  be  no 
conditional  delivery  if  the  grantor  retains  possession  of 
the  instrument,  it  being  considered  that  possession  by 
the  grantor's  agent  is  in  effect  possession  by  the  grantor 
himself.  Conceding  that  there  can  be  no  conditional 
delivery  so  long  as  the  grantor  retains  possession  of  the 
instrument,  a  view  which,  as  we  have  seen,  appears 
somewhat  difficult  to  sustain  on  principle,  it  does  not 
seem  that  there  is  the  equivalent  of  such  a  retention  of 
possession  when  the  grantor  hands  the  instrument  to 
another,  merely  because  such  other  is  his  agent.  That 
is  to  say,  the  fact  that  the  person  to  whom  he  hands  the , 
instrument  is  the  agent  of  the  grantor  for  other  pur- 

26.     Ashford     v.     Prewitt     102  762,    50    S.    E.    262;    Watkins    v. 

Ala.    264,    48    Am.    St.    Rep.    37;  Nash,    L.    R.,    20    Eq.    262. 
Dixon  V.   Bristol    Sav.    Bank,    102  27.     Day     v.     Lacasse,     85     Me. 

Ga.    461,    66    Am.    St.    Rep.    193;  242,    27    Atl.    124;     Van    Valken- 

Price   V.    Home    Ins.    Co.,    54    Mo.  burg    v.    Allen,     111    Minn.     333, 

App.    119;    Cincinnati.    R.    Co.    v.  137  Am.  St.  Rep.  561,  126  N.  W. 

Iliff,    13   Ohio    St.    235;    Fertig   v.  1092;    Wier    v.    Batdorf,    24    Neb. 

Bucher,  3  Pa.  St.  308;   Merchants'  83,   38   N.   W.   22.     Contra.   Smith 

Ins.  Co.  of  New  York  v.  Nowlin,  v.    Smith,    173   Cal.   725,    161    Pac. 

(Tex.   Civ.   App.),   56   S.   W.   198;  495;     McLaughlin    v.    Wheeler,    1 

Blair    v.    Security    Bank,    103    Va.  S.  D.  497,  47  N.  W.  816. 


§  4G2]  Transfer  Inter  Vivos.  17G7 

poses  does  not  show  that  he  is  his  agent  as  regards 
the  custody  of  the  document.  The  practical  incon- 
venience of  the  view  that  there  is  in  such  case  no  con- 
ditional delivery  would  seem  to  be  considerable.  Sup- 
pose, for  instance,  the  owner  of  land,  having  sold  it, 
signs  and  seals  a  conveyance  and  hands  it  to  his  legal 
adviser,  or  other  agent,  with  directions  to  hand  it  to 
ihe  purchaser  upon  payment  of  the  purchase  money. 
If  this  is  regarded  as  an  absolute  delivery  by  the  vendor, 
the  legal  title  passes,  contrary  to  his  intention,  even  be- 
fore the  payment  of  the  purchase  money,  while  if  it 
is  not  regarded  as  a  delivery,  the  conveyance  would  not 
pass  title  to  the  purchaser  even  on  his  payment  of  tlie 
price  and  the  physical  transfer  of  the  instrument  to 
him  by  the  agent,  unless  we  adopt  the  view,  which  is 
believed  to  be  unsound  on  principle,-'^  that  an  agent 
acting  under  oral  authority  may  make  delivery.  The 
proper  view,  it  is  submitted,  of  a  transaction  of  the 
character  referred  to,  is  that  a  conditional  delivery 
takes  place  when  the  instrument  is  handed  to  the  agent, 
the  condition  being  the  payment  of  the  purchase  money, 
upon  the  satisfaction  of  which  condition  the  ownership 
passes. 

Retention  of  control.     The   question   whether, 


when  the  instrument  has  been  handed  by  the  grantor 
to  a  third  person,  it  is  to  be  regarded  as  having  been 
conditionally  delivered,  is  to  be  determined  with  refer- 
"ence  to  the  language  used  by  him,  construed  in  the  light 
of  the  surrounding  circumstances,  as  showing  the 
grantor's  intention.^'-*     That  is,  as  absolute  delivery  is 

28.  Ante,    §    461,    notes    53-58.  N.    E.    800;    Jackson    v.    Sheldon, 

29.  Murray  v.  Stair,  2  B.  &  22  Me.  569;  Andrews  v.  Farnham, 
C.  82;  Bowker  v.  Burdekin,  11  29  Minn.  246,  13  N.  W.  161;  Clark 
M.  &  W.  128;  Seeley  v.  Curts,  v.  Gifford,  10  Wend.  (N.  Y.> 
(Ala.),  61  So.  807;  In  re  Cor-  310;  Gaston  v.  City  of  Portland, 
nelius'  Estate,  151  Cal.  550,  91  16  Ore.  255,  19  Pac.  127;  Bronx 
Pac.  329;  White  v.  Bailey,  14  Inv.  Co.  v.  National  Bank  of 
Conn.  271;  Shults  v.  Shults,  159  Commerce  of  Seattle,  47  Wash. 
111.   654,   50   Am.   St.   Rep.    188,    43  566,    92    Pac.    380. 


1758  iiEAL  Pkoperty.  [§  4()2 

a  question  of  the  grantor's  intention/^''  so  conditional 
delivery  is  a  question  of  his  intention.  Such  a  manual 
transfer  of  the  instrument  to  a  third  person  is  com- 
patible with  either  an  absolute  delivery,  a  conditional 
delivery,  or  no  delivery  whatsoever;  that  is,  the 
grantor  may  hand  the  instrument  to  a  third  person  with 
the  intention  that  it  become  immediately  operative,  that 
it  become  operative  in  case  a  certain  condition  is  satis- 
fied, or  with  no  intention  as  to  its  becoming  operative. 
A  conditional  delivery  differs  from  an  absolute  delivery 
merely  in  the  fact  that  it  is  subject  to  a  condition,  and 
it  is  in  its  nature  as  final  as  an  absolute  delivery.^ ^'^s 
For  this  reason  it  is  difficult  to  yield  our  assent  to  oc- 
casional decisions  and  dicta'*  that  the  grantor  may, 
when  handing  the  instrument  to  third  person  by  way  of 
conditional  delivery,  retain  a  right  of  revocation,  so 
called,  by  an  express  statement  that  the  instrument  is 
not  to  become  operative  even  on  satisfaction  of  the 
condition  if  he,  the  grantor,  in  the  meantime  indicates 
a  desire  to  the  contrary.  It  is  recognized  that,  after 
making  a  conditional  delivery  without  expressly  re- 
taining any  such  right  of  control,  the  grantor  cannot 
prevent  the  instrument  from  becoming  operative  upon 

30.    Ante,   §   461,   note   40.  Conn.  90,  87  Atl.  35;  or  for  other 

31-33.     Consequently     there     is  porposes,    so    long    as    he    retains 

no    conditional    delivery,    or    any  the  right  to  regard  it  as  nullity. 

delivery  vi^hatsoever,  if  the  grant-  Miller   v.    Sears,    91    Cal.    282,    25 

or    hands    the    instrument    to    a  Am.    St.    Rep.    176,    27    Pac.    589; 

third    person    with    a    statement  Holland  v.  McCarty,  173  Cal.  597, 

that    it    is    not    to   become    opera-  160    Pac.    1069;     Hoig    v.    Adrian 

tive    until    he    indicates    a    desire  College,     83     111.     267;     Kirby    v. 

to  that  effect.     Masters  v.   Clark,  Hulette,    174    Ky.    27,    192    S.    W. 

89     Ark.     191,     116     S.     W.     186;  63. 

Miller    v.    Sears,    91    Cal.    282,    25  34.     Soward    v.    Moss,    59    Neb. 

Am.  St.  Rep.  176;  Loubat  v.  Kipp,  71,    80    N.    W.    268;     Ruggles    v. 

9    Fla.    60;    James   v.    Vanderhey-  Lawson,    13    Johns.    (N.    Y.)    285, 

den,  1  Paige    (N.  Y.)    385.     Or  if  7     Am.     Dec.     375;      Wilkins     v. 

he    hands    it    to    a    third    person  Somerville,  80  Vt.  48,  11  L.  R.  A. 

merely  for  safe  keeping.     Dudley  (N.    S.)    1183,    130    Am.    St.    Rep. 

V.    Dodley,    126    Ark.    182,    189    S.  906,   66   Atl.   893. 

W.    838;    Shelinsky   v.   Foster,    87 


§  4(Jl'J 


Transfer  Inter  Vivos. 


17Gi) 


the  satisfaction  of  tlie  condition,^^  and  there  is  no  reason 
why  he  should  be  allowed  to  retain  a  right  of  control 
by  an  express  statement  to  that  effect  while  making 
delivery.^^  A  delivery  which  the  grantor  can,  at  his 
option,  treat  as  not  a  delivery,  is  incomprehensible, 
and  in  so  far  as  the  conveyance  may  still  be  subject  to 
the  grantor's  control,  in  the  sense  that  he  may  treat  it 
as  a  legal  nullity,  it  must  be  considered  that  there  has 
been  no  delivery,  conditional  or  unconditional,  and 
that  he  has  merely  handed  the  instrument  to  the  de- 
pository to  hold  as  his  agent. 

"Second  delivery."     One  notion  as  to  delivery 


in  escrow  which,  though  erroneous  on  principle,  and 
generally  repudiated,^"  receives  occasional  expression,^^ 
is  that  such  a  delivery  does  not  become  operative  by 


35.  Tharaldson  v.  Everts,  87 
Minn.  168,  91  N.  W.  467;  Seibel 
V.  Higham,  216  Mo.  121,  129  Am. 
St.  Rep.  502,  115  S.  W.  987; 
James  v.  Vanderheyden,  1  Paige 
(N.  Y.)  385;  Stanton  v.  MUler, 
58  N.  Y.  192.  But  see  Brown  v. 
Allbright  110  Ark.  394,  161  S. 
W.  1036,  for  a  dictum  contra. 

36.  That  there  is  no  delivery 
whatsoever  if  such  right  of  rev- 
ocation is  retained,  see  Moore 
V.  Moye,  122  Ark.  548,  184  S. 
W.  63;  Roe  v.  Lovick,  8  Ired. 
Eq.  (N.  C.)  88;  Prutsman  v. 
Baker,  30  Wis.  6'44,  11  Am.  Rep. 
592;  and  cases  in  note  31-33 
supra.  See  also  cases  to  the 
same  effect  in  connection  with  a 
delivery  to  take  effect  on  the 
grantor's  death,  post,  note  93. 
That  there  is  no  delivery  in  so 
far  as  a  right  of  control  stilt 
exists  in  the  grantor  see  ante. 
§    461,   note   60. 

37.  White  Star  Line  Steam- 
boat Co.  v.  Moragne,  01  Ala.  610, 


8  So.  867;  Cannon  v.  Handley, 
72  Cal.  133,  13  Pac.  315;  Couch 
V.  Meeker,  2  Conn.  302;  Davis 
V.  Clark,  58  Kan.  100,  48  Pac. 
563;  Francis  v.  Francis,  143 
Mich.  300,  106  N.  W.  864;  Naylor 
V.  Stene,  96  Minn.  57,  104  N.  W. 
685;  State  Bank  v.  Evans,  15 
N.  J.  L.  155,  28  Am.  Dec.  400; 
Craddock  v.  Barnes,  142  N.  C. 
89,  54  S.  E.  1003;  Shirley  v. 
Ayres,  14  Ohio  St.  307;  Ketter- 
son  V.  Inscho,  55  Tex.  Civ.  App. 
150,  118  S.  W.  626;  Prutsman  v. 
Baker,  30  Wis.  644. 

38.  See  Fuller  v.  HoUis,  57 
Ala.  435;  Fitch  v.  Bunch,  30  Cal. 
208,  212;  Foster  v.  Mansfield,  3 
Mete.  (Mass.)  412;  Taft  v.  Taft, 
59  Mich.  185,  60  Am.  Rep.  291; 
Lindley  v.  Groff,  37  Minn.  338, 
34  N.  W.  26;  Stephens  v.  Rine- 
hart,  72  Pa.  St.  434;  4  Kent's 
Comm.  454;  3  Wai-hburn,  Real 
Prop..  §  2179;  16  Cyclopedia 
Law  &  Proc.  561   n  3. 


1770  Real  PiiOPERXY.  [^,  462 

reason  of  the  satisfaction  of  the  condition,  unless  this 
is  followed  by  a  manual  transfer  of  the  instrument  by 
its  custodian  to  the  grantee  named  therein,  a  "second 
delivery"  as  it  is  sometimes  called.  It  might,  of  course, 
happen  that  such  a  transfer  is  a  part  of  the  condition 
on  which  the  delivery  is  made,  but  that  it  is  not 
ordinarily  the  grantor's  intention  that  the  operation  of 
the  instrument  shall  depend  on  the  custodian's  caprice 
or  convenience  in  handing  or  not  handing  the  instru- 
ment to  the  grantee  is  sufficiently  obvious.  The  fact 
that,  as  is  frequently  the  case,  the  grantor  requests  or 
directs  the  custodian  to  hand  the  instrument  to  the 
grantee  upon  the  occurrence  of  the  event  specified,  or 
even  that  the  grantor  is  under  the  mistaken  impression 
that  such  a  manual  transfer  is  necessary  in  order  to 
render  the  instrument  operative,  is  no  reason  for  infer- 
ring an  intention  that  the  instrument  shall  not  be 
operative  unless  such  a  transfer  is  made.  The  neces- 
sity of  such  a  physical  transfer  of  the  instrument  by  its 
custodian  cannot  be  regarded  as  involved  in  the  oc- 
casional decisions  that  the  grantee  may,  upon  satis- 
faction of  the  condition,  recover  possession  of  the  instru- 
ment from  the  custodian  by  suit.^'^  The  grantee  is  en- 
titled to  its  possession  because  it  is  a  muniment  of  his 
title,  and  not  because  its  possession  by  him  is  necessary 
to  render  it  legally  operative.  This  notion  of  the 
necessity  of  a  second  delivery  is  evidently  based  on  the 
primitive  idea,  before  referred  to,  which  still  so  fre- 
quently emerges,  that  the  operation  of  a  deed  is  de- 
pendent on  the  physical  transfer  of  the  instrument  to 
the  grantee  or  obligee. 

39.     Tombler     v.     Sumpter,     97  Appeal,  113  Pa.   St.  58.  65,  4  Atl. 

Ark.  480,  134  S.  W.  967;    Hardin  461;      Gammon     v.     Bunnell,     22 

V.     Neal     Loan    &    Banking    Co.,  Utah,  421,  64  Pac.  958    (semble) ; 

125  Ga.  820,  54   S.  E.  755;    Guild  Bronx  Inv.  Co.  v.  National  Bank 

V.  Althouse,  71  Kan.  604,  81  Pac.  of    Commerce,    47    Wash.    566,    92 

172;    Stanton  v.  Miller,   58   N.  Y.  Pac.   380;    Schmidt  v.   Deegan,   69 

192,    202,    65    Barb.    58;     BaXim's  Wis.  300,  34  N.  W.  83. 


§  462] 


Transfer  Inter  V 


IVOS. 


1771 


Closely  connected  in  its  nature  and  origin  with  this 
notion  of  the  necessity  of  a  second  delivery  is  the  con- 
tention, occasionally  made,  that  if  the  custodian  of  the 
instrument  hands  it  to  the  grantee  before  the  satisfac- 
tion of  the  condition,  the  instrument  becomes  immedi- 
ately operative.  This  contention  has  met  with  no  favor, 
tliere  being  a  considerable  number  of  decisions  that 
an  instrument  delivered  in  escrow  does  not  thus  be- 
come innnediately  operative  by  reason  of  such  a  trans- 
fer to  the  grantee  of  the  possession  of  the  i^strumont.^*' 
And  this  has  been  held  to  be  so  even  as  against  a 
subsequent  innocent  purchaser  for  value  from  the 
grantee,^ ^  unless  the  grantor,  in  giving  the  grantee  pos- 
session of  the  land  in  addition  to  relinquishing  control 
of  the  instrument,  was  guilty  of  such  negligence  as  to 
be  precluded  from  asserting  that  the  instrument  was 
delivered  merely  in  escrow.^^     The  grantor  may,  how- 


40.  Calhoun  County  v.  Ameri- 
can Emigrant  Co.,  93  U.  S.  124, 
127,  23  L.  Ed.  826;  Ober  v. 
Pendleton,  30  Ark.  61;  Heney 
V.  Pesoli,  109  Cal.  53,  41  Pac. 
819;  Stanley  v.  Valentine,  79 
111.  544;  Jackson  v.  Rowley,  88 
Iowa,  184,  55  N.  W.  339;  Dag- 
gett V.  Daggett,  143  Mass.  516, 
10  N.  E.  311;  Black  v  Shreve, 
13  N.  J.  Eq.  455,  4JB;  Hinman 
V.  Booth,  2  Wend.  (N.  Y.)  267; 
Thornhill  v.  Olson,  31  N.  D.  81, 
L.  R.  A.  1916A,  493,  Ann  Cas. 
1917E,  427,  153  N.  W.  442; 
Powers  V.  Rude,  14  Okla.  381; 
Bradford  v.  Durham,  54  Ore.  1, 
l.-^S  Am.  St.  Rep.  807,  101  Pac. 
897;  Sharp  v.  Kilborn,  G4  Ore. 
371,  130  Pac.  735;  Etheredge  v. 
Aetna  Ins.  Co.,  102  S.  C.  313, 
86  S.  E.  687;  Schmidt  v.  Mus- 
son,  20  S.  D.  389,  107  N.  W.  367; 
Morris  v.  Blunt,  35  Utah,  194, 
99  Pac.  686. 


41.  Dixon  V.  Bristol  Sav. 
Bank,  102  Ga.  461,  31  S.  E.  96, 
66  Am.  St.  Rep.  193;  Forcum  v. 
Brown,  251  111.  301,  96  N.  E.  259; 
Jackson  v.  Lynn,  94  Towa,  151, 
58  Am.  St.  Rep.  386,  62  N.  W. 
704;  Seibel  v.  Higham,  216  Mo. 
121,  129  Am.  St.  Rep.  502,  115 
S.  W.  987  (semhle) ;  Harkreader 
V.  Clayton,  56  Miss.  383,  31  Am. 
Rep.  369;  Wood  v.  French.  39 
Okla.  685,  136  Pac.  734;  Boswell 
V.  Pannell,  — Tex.  Civ.  App. — , 
146  S.  W.  233;  Smith  v.  South 
Royalton  Bank,  32  Vt  341; 
Everts  v.  Agnes,  4  Wis.  343,  65 
Am.  Dec.  314,  6  Wis,  453;  Frank- 
lin V.  Killilea,  126  Wis.  88,  104 
N.  W.  993;  Cobban  v.  Conklin, 
125  C.  C.  A.  451,  208  Fed.  231; 
United  States  v.  Payette  Lum- 
ber &  Mfg.  Co.,  198  Fed.  88. 
See   ante,    §    461,   note   50. 

42.  Bailey     v.     Crim,     9     Biss. 
(U.  S.)    95;    Mays  v.  Shields,   117 


1772 


Eeal  Peopkbty. 


[§  -t62 


ever,  it  is  said,  waive  the  condition,  as  by  recognizing 
the  instrument  as  operative  although  the  condition  has 
not  been  satisfied,^^  and  even  his  mere  failure,  for  an 
unreasonable  time,  to  take  measures  to  cancel  or  other- 
wise nullify  the  instrument  after  it  has  passed  into  the 
grantee's  control  may  preclude  him  from  thereafter  as- 
serting, as  against  an  innocent  purchaser,  that  his  de- 
livery thereof  was  conditional.^^ 

A  distinction  in  this  regard  is  asserted  in  some  of 
the  books  between  an  instrument  delivered  as  an  escrow, 
not  to  take  eifect  as  the  grantor's  deed  until  the  satis- 
faction of  a  condition,  and  an  instrument  handed  to  a 
third  person,  as  the  grantor's  deed,  to  be  "delivered" 
to  the  grantee  upon  the  satisfaction  of  a  condition; 
it  being  said  that,  in  the  latter  case,  as  distinguished 
from  the  former,  the  instrument  is  the  grantor's  "deed 
presently,"  and  if  the  grantee  obtains  possession  thereof 
even  before  the  satisfaction  of  the  condition  it  becomes 


Ga.  814,  45  S.  E.  68;  Quick  v. 
Milligan,  108  Ind.  419,  58  Am. 
Rep.  49;  Hubbard  v.  Greeley,  84 
Me.  340,  17  L.  R.  A.  511,  24  Atl. 
799;  Schurtz  v.  Colvin,  55  Ohio 
St.  274,  45  N.  E.  527;  Wood  v. 
French,  39  Okla.  685,  136  Pac. 
734;  Blight  v.  Schenck,  10  Pa. 
St.  285,  51  Am.  Dec.  478;  Spotts 
V.  Whitaker,  — Tex.  Civ.  App. — , 
157  S.  W.  422;  King  v.  Diffey, 
—Tex.  Civ.  App.—,  192  S.  W. 
262. 

And  that  the  grantor  may  be 
estopped  by  reason  of  his  failure 
to  'act  promptly  against  the 
grantee  after  the  wrongful  acqui- 
sition of  the  instrument  by  the 
latter,  see  Allen  v.  Powell,  (Ind. 
App,),  115  N.  E.  96;  Baillarge 
V.  Clarke,  145  Cal.  589,  104  Am. 
St.  Rep.  75,  79  Pac.  268;  Leonard 
v.  Shale,  266  Mo.  123,  181  S.  W. 
16.      See   i)Ost,    §    462,    note   44. 


43.  Jackson  v.  Badham,  162 
Ala.  484,  50  So.  131;  Mays  v. 
Shields,  117  Ga.  814,  45  S.  E. 
68;  Eggleston  v.  Pollock,  38  Neb. 
188,  56  N.  W.  805;  Oland  v. 
Malson,  39  Okla.  456,  135  Pac. 
1055;  Truman  v.  McCollum,  20 
Wis.    70. 

As  well  suggested  in  Mr. 
Ewart's  admirable  work  "Waiver 
Distributed,"  at  p.  130,  in  such 
a  case  of  waiver,  so  called,  of  the 
condition  on  which  delivery  is 
made,  the  condition  is  to  be  re- 
garded as  being  subject,  in  its 
creation,  to  the  grantor's  option, 
that  is,  the  grantor  has  the 
privilege  of  having  it  regarded 
as  conditional  or  not  conditional. 

44.  Mays  v.  Shields,  117  Ga. 
814,  45  S.  E.  68;  Haven  v.  Kra- 
mer, 41  Iowa,  382;  Johnson  v. 
Erlandson,  14  N.  D.  518,  105  N. 
W\    722;    Connell    v.    Connell,    32 


§  462] 


Tbansfek  Inter  Vivos. 


1773 


immediately  operative.^ ^  This  distinction  is  strongly 
asserted  in  one  case  in  this  country,-*^  and  in  a  few 
others  it  is  referred  to  in  terms  of  approval.*"  In 
others  it  has  been  repudiated*^  or  referred  to  as  ques- 
tionable.*^ The  old  books  in  which  this  distinction  is 
asserted  make  it  hinge  upon  the  language  used  by  the 
grantor  or  obligor  in  handing  the  instrument  to  the 
intended  custodian,  that  is,  upon  whether  the  grantor 
handed  it  as  his  deed  or  as  an  escrow,  it  being  re- 
garded as  his  "deed  presently"  if  referred  to  by  him 
as  his  deed.^*'  At  the  present  day  it  is  ejitirely  im- 
material whether  the  grantor  refers  to  the  instrument 
as  an  escrow  or  as  his  deed,  and  the  fact  that  the 
grantor  directs  the  person  to  whom  he  hands  the  instru- 
ment to  hand  or  "deliver"  it  to  the  grantee  only  upon 
the  satisfaction  of  a  condition  would  ordinarily  be  re- 


W.  Va.  319,  9  S.  E.  252.  See 
ante,  §  461,  note  51.  That  the 
grantor  may  have  the  instrument 
cancelled  If  prematurely  handed 
by  its  custodian  to  the  grantee, 
see  Anderson  v.  Goodwin,  125  Ga. 
663,  54  S.  E.  679;  Bales  v. 
Roberts,  189  Mo.  49,  87  S.  W. 
914.  That  he  may  have  its 
record  enjoined,  see  Matteson  v. 
Smith,  61  Neb.  761,  86  N.  W. 
472. 

45.  Comyn's  Dig.  Fait,  A  3; 
Perkins,  Conveyancing,  §§  143, 
144;  Sheppard's  Touchstone,  59; 
Bushell  V.  Pasmore,  6  Mod.  217. 
The  distinction  is  recognized  in 
Murray  v.  Stair,  2  B.  &  C.  82, 
but  apparently  repudiated  in 
Johnson  v.  Baker,  2  B.  &  Aid. 
440. 

46.  Wheelwright  v.  Wheel- 
wl"ight,  2  Mass.  447,  3  Am.  Dec. 
66. 

47.  Hathaway  v.  Payne,  34  N. 
Y.  92;  Martin  v.  Flaharty,  13 
Mont.    96,    40    Am.    St.    Rep.    415; 

2  R.  P.— 37 


Ball  V.  Foreman,  37  Ohio  St. 
132;  Prutsman  v.  Baker,  30  Wis. 
644,  11  Am.  Rep.  592;  Wells  v. 
Wells,  132  Wis.  73,  111  N.  W. 
1111. 

48.  State  Bank  at  Trenton  v. 
Evans,  15  N.  J.  L.  155,  28  Am. 
Dec.  400;  Hall  v.  Harris,  5  Ired. 
Eq.   303. 

49.  See  Jackson  v.  Sheldon, 
22  Me.  569;  Wellborn  v.  Weaver, 
17  Ga.  267,  63  Am.  Dec.  235. 
"The  distinction  on  this  point 
is  quite  subtle,  and  almost  too 
evanescent  to  be  relied  on."  4 
Kent's  Comm.  455,  n. 

50.  In  Murray  v.  Stair,  2  B.  & 
C.  82,  it  is  said  that  the  word 
"escrow"  need  not  be  used  to 
make  a  delivery  in  escrow,  but 
no  criterion  for  the  application 
of  the  asserted  distinction  Is  in- 
dicated. See  the  judicious  re- 
marks of  Hornblower,  C.  J.,  In 
State  Bank  at  Trenton  v.  Evans, 
15  N.  J.  L.  158,  28  Am.  Dec. 
400. 


1774  Real  Propeety.  [§  462 

garded  as  showing  that  the  original  delivery  of  the  in- 
strument was  conditional  only.  There  is,  it  is  sub- 
mitted, absolutely  no  distinction  between  an  instrument 
conditionally  delivered  as  an  escrow  and  one  con- 
ditionally delivered  as  a  deed,  and  neither  can  take 
effect  until  the  condition  is  satisfied.  There  is,  it  is 
true,  a  dictum  of  Chief  Justice  Shaw^  to  the  apparent 
effect  that  an  instrument  can  be  regarded  as  an  escrow 
only  when  the  delivery  is  conditioned  upon  the  per- 
formance of  some  act  by  the  grantee  or  obligee,  while  it 
is  the  grantor's  "deed  presently"  if  conditioned  upon 
the  occurrence  of  some  other  character  of  *event,^^  but 
as  he  cites  no  authority  and  states  no  reason  in  sup- 
port of  the  dictum,  it  may,  it  is  submitted,  be  disre- 
garded, in  view  especially  of  the  fact  that  there  are 
quite  a  number  of  cases'^-  in  which  it  is  assumed  with- 
out question  that  an  instrument  conditionally  delivered 
is  an  escrow,  although  the  condition  does  not  involve 
the  voluntary  performance  of  any  act  by  the  grantee  or 
obligee. 

Necessity  of  contract.     It  has  been  asserted  in 

a  number  of  cases  that  there  can  be  no  delivery  in 
escrow  unless  it  takes  place  as  the  result  of  an  actual 
contract  of  sale  between  the  parties  to  the  instrument, 

51.  Foster  V.  Mansfield,  3  Mete.  Am.  St.  Rep.  785,  14  Pac.  580; 
(Mass.)  412,  37  Am.  Dec.  154.  McDonald  v.  Huff,  77  Cal.  279,  19 
The  dictum  is  quoted  with  ap-  Pac.  499;  Raymond"  v.  Smith,  5 
proval  in  Fine  v.  Lasater,  110  Conn.  555;  Stone  v.  Duvall,  77 
Ark.  425,  Ann.  Cas.  1915C,  385,  111.  475;  Shults  v.  Shults,  159 
161  S.  W.  1147;  Grilley  v.  At-  111.  654,  50  Am.  St.  Rep.  188, 
kins,  78  Conn.  380,  4  L.  R.  A.  43  N.  E.  800;  Fitzgerald  v.  Allen, 
(N.  S.)  816,  112  Am.  St.  Rep.  240  111.  80,  88  N.  E.  240;  Millett 
152,  62  Atl.  337;  Taft  v.  Taft,  59  v.  Parker,  2  Mete.  (Ky.)  608; 
Mich.  185,  60  Am.  Rep.  291;  Hoagland  v.  Beckley,  158  Mich. 
Stephens  v.  Rinehart,  72  Pa.  St.  565,  123  N.  W.  12;  Price  v.  Home 
434;  Landon  v.  Brown,  160  Pa.  Ins.  Co.,  54  Mo.  App.  119;  Gil- 
St.   538,   28   Atl.   921.  bert  v.  North  American  Fire  Ins. 

52.  See  e.  g.;  Prewitt  v.  Ash-  Co.,  23  Wend.  (N.  Y.)  44,  35 
ford,  90  Ala.  294,  70  So.  831;  Am.  Dec.  543;  Tooley  v.  Dibble, 
Conneau    v.    Geis,    73    Cal.    176,    2  2    Hill.     (N.    Y.)     641;     Payne    v. 


§  462] 


Transfer  Inter  Vivos. 


1775 


as,  for  instance,  when  the  delivery  is  conditioned  upon 
the  payment  by  the  grantee  of  an  agreed  price  for  the 
land.  This  view  appears  to  have  been  first  asserted  in 
a  California  case,^^  which,  without  naming  any  authority, 
stated  this  as  one  possible  ground  of  its  decision,  and 
this  was  the  only  authority  cited  in  a  subsequent  case 
in  Wisconsin, ^^  which  explicitly  decided  that  in  the 
absence  of  a  valid  and  enforceable  contract  between  the 
parties  for  the  sale  of  the  land,  there  could  be  no 
delivery  in  escrow.  On  the  authority  of  this  latter  case 
and  of  one  of  the  text  books  hereafter  referred  to,  the 
same  view^  was  adopted,  without  discussion,  by  the 
Supreme  Court  of  Utah,'^^  and  it  was  likewises  adopted 
in  Oregon"'''^  upon  the  authority  of  text  book  statements 
alone.  There  are  occasional  decisions  to  the  same  effect 
in  other  States,^^  and  various  text  books,  on  the 
authority  of  one  or  more  of  the  cases  above  referred  to, 
state  this  as  settled  law."'''  The  idea  at  the  basis  of  this 
asserted  requirement  of  an  auxiliary  contract  in  con- 
nection with  conditional  delivery  appears  to  be  that,  in 
the  absence  of  such  a  contract,  the  grantor  can  control 
the  operation  of  the  instrument,  that,  in  other  words, 


Smith,  28  Hun  (N.  Y.)  104; 
Clarke  v.  Eureka  County  Bank, 
123   Fed.   922. 

53.  Fitch  V.  Bunch,  30  Cal. 
208,  approved  in  Miller  v.  Sears, 
91  Cal.  282,  25  Am.  St.  Rep.  176; 
Holland  v.  McCarthy,  173  Cal. 
597,  160  Pac.  1069.  Professor 
R.  W.  Aigler  considers  that  this 
case  first  cited  merely  asserted, 
in  effect,  that  the  absence  of  a 
contract  of  sale  is  conclusive,  or 
approximately  conclusive,  that  no 
delivery  has  been  made,  that,  in 
other  words,  the  depositary  holds 
it  subject  to  the  grantor's  con- 
trol. See  article  16  Mich.  Law 
Rev.   569. 

54.  Campbell     v.     Thomas,     42 


Wis.  437,  24  Am.  Rep.  427. 

55.  Clark  v.  Campbell,  23 
Utah,  569,  54  L.  R.  A.  508,  90 
Am.    St.    Rep.    716,    65    Pac.    496. 

56.  Davis  v.  Brigham,  56  Ore. 
41.  107  Pac.  961,  Ann.  Cas.  1912B, 
1340,  followed  in  Foulkes  v.  Seng- 
stacken,  83  Ore.  US,  163  Pac.  311. 

57.  Main  v.  Pratt,  276  111. 
218,  114  N.  E.  576;  McLain  v. 
Healy,  98  Wash.  489,  168  Pac.  1; 
Freeland  v.  Charnley,  80  Ind. 
132.  See  Seibert  v.  Lanz,  29  N. 
D.  139,  150  N.  W.  568. 

58.  16  Cyclopedia  Law  &  Proc. 
562;  11  Am.  &  Eng.  Encyc.  Law 
(2d  Ed.),  335;  1  Devlin,  Deeds, 
31.']. 


1776  Eeal  Property.  [§  462 

he  may  revoke  the  delivery.^^  Such  an  idea  is,  it  is 
conceived,  absolutely  erroneous,^*^  and  involves  an  en- 
tire misapprehension  of  the  nature  of  conditional  de- 
livery. After  the  delivery  of  the  instrimaent  of  con- 
veyance, whether  absolutely  or  conditional,  the  parties 
stand  in  the  relation,  not  of  vendor  and  purchaser  under 
a  contract  but  of  grantor  and  grantee  under  a  convey- 
ance, and  consequently  the  question  of  the  existence  of 
a  valid  contract  of  sale,  is  immaterial.'^  ^  There  is  no 
more  reason  for  regarding  the  conditional  delivery  of 
a  conveyance  as  invalid  in  the  absence  of  an  enforciblo 
contract  of  sale  than  for  so  regarding  an  absolute  de- 
livery. 

The  view  referred  to,  that  a  contract  is  necessary 
to  a  conditional  delivery,  has  no  considerations  of  policy 
or  convenience  in  its  favor,  and  its  necessary  result  is 
considerably  to  detract  from  the  practical  utility  of  the 
doctrine  of  conditional  delivery.  Apart  from  the  fact 
that  it  involves  a  misapprehension  of  the  nature  of 
conditional  delivery,  the  following  additional  objections 
thereto  may  be  suggested.  In  the  first  place,  the  doc- 
trine of  conditional  delivery  is  not  peculiar  to  convey- 
ances of  land,  but  is  recognized  also  in  connection  with 
contracts  under  seal  and  also  bills  and  notes.  If  there 
can  be  no  conditional  delivery  of  a  conveyance  in  the 
absence  of  a  contract  of  sale,  that  is,  a  contract  to 
execute  a  conveyance,  it  would  seem  a  reasonable  infer- 
ence that  there  can  be  no  conditional  delivery  of  a 
contract  under  seal  or  a  promissory  note  unless  there 
is  a  contract  to  execute  such  an  instruipent.  There  is 
no  more  reason  for  requiring  an  auxiliary  contract  in 
the  one  case  than  in  the  others.  Yet  it  has  never  been 
suggested,  so  far  as  the  writer  is  informed,  that  there 

59.  See  particularly  Campbell  61.  This  is  well  stated  in  an 
V.  Thomas,  42  Wis.  437,  24  Am.  editorial  note  in  15  Mich.  Law 
Rep.  427,  for  an  assertion  to  this  Rev.  579,  by  Professor  R.  W. 
effect.  Aigler.      See   also   article   by   the 

60.  Ante,  this  section,  note  35.  same  writer,  16  Id.  569. 


§  462]  Transfer  Inter  Vivos.  1777 

can  be  a  conditional  delivery  of  a  contract  under  seal 
or  a  promissory  note,  only  when  there  is  a  legally  valid 
contract  to  execute  the  contract  or  note.  Furthermore, 
a  valid  conditional  delivery  may  occur  in  connection  with 
transactions  not  involving  a  sale,  in  the  case  of  a  gift, 
for  instance.  There  can  obviously  be  no  contract  of 
sale  in  such  case  to  support  the  validity  of  the  delivery,^^ 
ye^  if  a  contract  of  sale  is  necessary  to  support  a  con- 
ditional delivery  in  the  one  case,  how  can  such  a  delivery 
be  valid  without  a  contract  of  sale  in  the  other? 
Another  consideration  adverse  to  the  view  referred  to 
lies  in  the  fact  that,  while  the  doctrine  of  delivery  in 
escrow  was  recognized  in  the  common-law  courts  at 
least  as  early  as  the  tirst  half  of  the  fifteenth  century ,•'•'• 
a  purely  executory  contract,  not  under  seal,  was  not 
there  enforceable  at  that  time.^^  That  being  the  case,  the 
requirement  of  an  extraneous  contract  in  order  to 
make  the  delivery  in  escrow  effective  w^ould,  in  the 
fifteenth  or  sixteenth  centuries,  have  necessitated  a  con- 
tract under  seal,  and  it  seems  hardly  probable  that  such 
a  delivery  of  an  obligation  or  conveyance  under  seal 
was  ahvays  accompanied  by  another  obligation  under 
seal  calling  for  its  execution.  The  subject  of  delivery 
in  escrow  is  treated  with  considerable  fullness  in  at 
least  two  of  the  earlier  books,^^  and  there  is  not  the 
slightest  suggestion  in  either  as  to  the  necessity  of 
such  an  auxiliary  contract.  It  is,  to  say  the  least,  some- 
what extraordinary  that  an  integral  element  in  a 
doctrine  dating  from  the  commencement  of  the  fifteenth 

62.  This  is  recognized  in  Hoi-       6,   25. 

land    V.    McCarthy,    173    Cal.    597,  64.     Ames,   History  of  Assump- 

160    Pac.    1069,    where    it    is    ac-  sit,   2  Harv.   Law  Rev.   1,   5.i,   re- 

cordingly    stated    that    though    a  printed     in     Lectures     on     Legal 

contract     is    necessary     in     other  History,   129,   149;    3   Holdsworth, 

cases    of    conditional    delivery,    it  Hist.   Eng.  Law  336-349;    Pollock, 

is  not  necessary  when  it  is  made  Contracts    (8th   Ed.)    148. 

in  pursuance  of  a  gift.  65.     Perkins.    Conveyanring.    §§ 

63.  See    Y.    B.    13    Hen.    4.    8;  138.   144;    Sheppard's   Touchstone. 
Y.  B.  8  Hen.  6.  26;    Y.  B.  10  Hen.  58,  59. 


1778  Keal  Peoperty.  [§  462 

centurj^   should   have   remained  to   be   discovered  by   a 
California  court  in  the  latter  half  of  the  nineteenth. 

In  addition  to  the  cases  above  referred  to  which 
assert  that  existence  of  a  contract  of  sale  is  necessary 
in  order  that  a  conveyance  may  be  delivered  in  escrow, 
there  are  to  be  found  judicial  suggestions  to  the  effect 
that  the  ''deposit  in  escrow,"  that  is,  the  physical 
transfer  of  the  instrument  by  the  grantor  or  obligor  to 
a  third  person,  to  hold  until  satisfaction  of  the  con- 
dition, must  be  in  pursuance  of  a  contract  between  the 
parties.^^  Thus  it  has  been  said  in  one  case  that  the 
making  of  a  deed  in  escrow  presupposes  a  contract 
pursuant  to  which  the  deposit  is  made,*^^  and  in  another 
that  there  must  be  a  contract  which  prevents  the  grantor 
from  recalling  the  deed.''^  The  idea  that,  in  the  ab- 
sence of  a  contract,  the  grantor  can  recall  the  deed  is, 
as  before  remarked,  without  any  support  in  principle, 
and  there  is,  it  is  submitted,  no  more  necessity  of  a 
contract  in  regard  to  its  custody  when  the  delivery  is 
conditional  than  when  it  is  unconditional. 

Satisfaction  of  condition.    Properly  considered, 


conditional  delivery,  or  delivery  in  escrow,  is  the  same 
as  any  other  delivery,  except  that  it  is  subject  to  the 
satisfaction  of  a  condition.  After  the  condition  has 
been  satisfied,  there  is  an  operative  conveyance^'^  which 
is  to  be  regarded  as  having  been  delivered  at  the  time 
of  its  conditional  delivery,  for  the  obvious  reason  that 
it  was  then,  and  then  only,  that  it  was  delivered,  though 

66.  See  Fitch  v.  Bunch,  30  of  which  three  cases  supports  the 
Cal.  208;  Wellborn  v.  Weaver,  statement  in  the  slightest  degree. 
17   Ga.   267.  69.     If    the    condition    is    satis- 

67.  Stanton  v.  Miller,  58  N.  fied,  the  operation  of.  the  con- 
Y.   192.  veyance  is  obviously  not  prevent- 

68.  Anderson  v.  Messenger  (C.  ed  by  the  fact  that  the  grantor 
C.  A.)  158  Fed.  250,  citing  James  reacquires  possession  of  the  in- 
V.  Vanderheyden  (N.  Y.)  1  Paige,  strument.  Wymark's  Case,  5  Co, 
385;  Cook  v.  Brown,  34  N.  H.  Rep.  74;  Regan  v.  Howe,  121 
460;  and  Prutsman  v.  Baker,  30  Mass.  424;  Bauni's  Appeal,  113 
Wis.   644,   11   Am.   Rep.   592,   none  Pa.   St.  58,   4   Att.  461. 


§  462]  Transfer  Inter  Vivos.  1779 

the  ownership  cannot  be  regarded  as  having  passed 
until  it  actually  did  pass,  that  is,  until  the  satisfaction  of 
the  condition.  The  grantor  in  effect  says,  at  the  time 
of  handing  the  instrument  to  the  intended  custodian, 
"I  now  deliver  this  as  my  deed  provided  such  a  thing 
is  done  or  occurs."  That  the  delivery  of  the  instru- 
ment and  the  passing  of  the  ownership  thus  occur  at  dif- 
ferent times  is,  it  is  conceived,  the  solution  of  the  some- 
what vague  statements  in  the  books,  that,  on  the  satis- 
faction of  the  condition,  the  deed  will  relate  back  to  the 
time  of  delivery  in  order  to  uphold  the  deed,  or  to  do 
justice,  or  to  carry  out  the  intention  of  the  parties,'^'^ 
and  it  will  serve  to  explain  most  of  the  decisions  in 
this  regard.  The  analogy  may  be  suggested  of  an  exec- 
utory limitation  contained  in  a  conveyance  inter  vivos, 
which  does  not  vest  an  estate  until  satisfaction  of  the  con- 
dition precedent,  but  which,  when  the  condition  is  satis- 
fied, takes  effect  regardless  of  events  or  transactions 
which  may  have  taken  place  since  the  time  of  the  de- 
livery of  the  conveyance.  Accordingly,  the  fact  that  the 
grantor  dies,'^^   or   becomes   incapitated,'^-    between   the 

70.     Price    v.    Pitsburg,    Ft.    W.  ^9,  72. 
&  C.   R.   Co.,   34    in.   13;    Hoyt  v.  71.     Davis    v.    Clark,    58    Kan. 

McLagan,  87  Iowa,  746,  55  N.  W.  100,    48    Pac.    563;    Cook's    Adm'r 

18;   Mohr  v.  Joslin,  162  Iowa,  34,  v.  Hendricks,  4  T.  B.  Mon.   (Ky.) 

142   N.   W.   981;    Baker  v.    Snave-  500;  Wheelwright  v.  Wheelwright, 

ley,    84    Kan.    179,    114    Pac.    370;  2     Mass.    447,     3     Am.     Dec.     66; 

Taft    V.    Taft,    59    Mich.    185,    60  Tharaldson    v.    Everts,    87    Minn. 

Am.    Rep.    291;     Simpson    v.    Mc-  168,    91    N.    W.    4G7;    Schooler    v. 

Glathery,    52    Miss.   723;    Frost   v.  Schooler,    258    Mo.    83,    167    S.   W. 

Beekman,      1      Johns.      Ch.     288;  444;     Webster    v.    Kings    County 

Craddock    v.    Barnes,    l42    N.    C.  Trust   Co.,    145   N.    Y.   275,    39    N. 

89,     54    S.     E.     1003;     Shirley    v.  E.    964;    Jackson    v.    Jackson,    67 

Ayres,  14  Ohio,  307,  45  Am    Dec.  Ore.    44,    Ann.    Cas.     1915C,    373, 

546;     May    v.    Emerson,    52    Ore.  135    Pac.    201;    Gammon    v.    Bun- 

262,    16    Ann.    Cas.    1129,    96    Pac.  nell,    22    Utah,   421,    64    Pac.    958; 

454,   1065;    Landon  v.  Brown,   160  Bronx  Inv.  Co.  v.  National  Bank 

Pa.    538,    28    Atl.    921;    Foxley    v.  of    Commerce,    47    Wash.    566,    92 

Rich,   35  Utah,   162,   99   Pac.   666;  Pac.     380;      Perryman's     Case,     5 

Spring    Garden    Bank    v.    Hulings  Co.  Rep.  84. 

Lumber  Co.,  32  W.  Va.  357,  3  L.  72.     Perkins,    Conveyancing.    §§ 

R.  A.  58;{;   Sheppard's  Touchstone,  10,   140;    Jennings   v.   Bragg,   Cro. 


1780 


Real  Property. 


[§  462 


time  of  the  delivery  of  the  instrument  and  the  satis- 
faction of  the  condition,  does  not  affect  the  validity  of 
the  instrument  as  a  conveyance.  And  likewise,  if  the 
grantee  dies  during  such  interval  of  time,  the  possibility 
of  ownership  vests  in  his  heir.'^^  So  the  instrument  is 
to  be  regarded  as  having  been  delivered  at  the  time  of 
the  conditional  delivery,  as  against  an  intermediate 
purchaser  from  the  grantor,  and  is  entitled  to  priority, 
unless  such  purchaser  is  a  bona  fide  purchaser  for  value, 
and  as  such  protected  against  a  conveyance  prior  in 
time.'''^  And  as  against  a  creditor  of  the  grantor  in  favor 
of  whom  a  lien  accrues  by  attachment  or  judgment 
intermediate  the  delivery  and  the  satisfaction  of  the 
condition,  the  grantee  takes  priority,'^^  unless  such 
creditor  is,  by  the  recording  law  of  the  particular  juris- 
diction, entitled  to  the  protection  accorded  a  bona  fide. 
purchaser.'^''    On  the  other  hand,  since  the  title  does  not 


Eliz.  447;  Butler's  Case,  3  Co. 
Rep.  25;  Davis  v.  Clark,  58  Kan. 
100,  48  Pac.  563;  Wheelwright 
V.  Wheelwright,  2  Mass.  447,  3 
Am.  Dec.  66;  Simpson  v.  Mc- 
Glathery,  52  Miss.  723. 

73.  Ferryman's  Case,  5  Co. 
Rep.  84;  Prewitt  v.  Ashford,  90 
Ala.  294,  7  So.  831;  Stone  v. 
Duvall,  77  111.  475;  Lindley  v. 
Groff,  37  Minn.  338,  34  N.  W. 
26;  Webster  v.  Kings  County 
Trust  Co.,  145  N.  Y.  275,  39  N. 
E.  964;  Perry  v.  Perry,  170  App. 
Div.   525,  155  N.  Y.   Supp.  954. 

74.  McDonald  v.  Huff,  77  Cal. 
279,  19  Pac.  499;  Whitmer  v. 
Schenck,  11  Idaho.  702,  83  Pac. 
775;  Leiter  v.  Pike,  127  111.  287; 
20  N.  E.  23;  Wright  v.  Astoria 
Co.,  45  Ore.  224,  77  Pac.  599;  Wil- 
kins  V.  Somerville,  80  Vt.  48,  11  L. 
R.  A.  (N.  S.)  1183,  130  Am,  St. 
Rep.  906,  66  Atl.  893.  As  against 
equities  accruing   before   the  con- 


ditional delivery,  the  grantee  in 
the  deed  conditionally  delivered, 
like  any  other  grantee,  cannot 
claim  as  a  bona  fide  purchaser 
for  value  unless  he  paid  value 
before  receiving  notice.  See 
Baker  v.  Suavely,  84  Kan.  179, 
114   Pac.   370. 

75.  Whitfield  .  v.  Harris,  48 
Miss.  710;  Simpson  v.  McGlath- 
ery,  52  Miss.  723;  Hall  v.  Harris, 
(N.  C),  5  Ired.  Eq.  303;  see 
Dettmer  v.  Behrens,  106  la.  585, 
68  Am.  St.  Rep.  326,  76  N.  W. 
853;  Shirley's  Lessee  v.  Ayres, 
14  Ohio,  307.  Contra,  Jackson  v. 
Rowland,  (N.  Y.),  6  Wend.  66; 
Wolcott  V.  Johns,  7  Col.  App. 
360,  44  Pac.  675  {dictum);  Taft 
V.  Taft,  59  Mich.  185,  60  Am. 
Rep.   291. 

76.  See  May  v.  Emerson  52 
Ore.  262,  16  Ann.  Cas.  1129,  96 
Pac.  454;  Riddle  v.  Miller,  19 
Ore.  468,  23  Pac.  807. 


§  462]  Transfer  Inter  Vivos.  1781 

pass  as  of  the  time  of  the  conditional  delivery,  a  dis- 
tress levied  by  the  grantor  before  the  satisfaction  of 
the  condition  is  valid."  And  the  grantor  is  entitled  to 
the  rents  and  profits  of  the  land  until  the  condition  is 
satisfied,'^  except  when,  owing  to  the  pajTnent  by  the 
grantee  of  interest  on  the  purchase  price,  the  court, 
in  the  equitable  adjustment  of  the  rights  of  the  parties, 
gives  the  rents  and  profits  to  the  grantee."^  And  the 
grantor  has  been  properly  considered  the  owmer  of  the 
land  for  the  purpose  of  signing  a  petition  for  the  organ- 
ization of  a  drainage  district,^^  as  well  as  for  the  pur- 
pose of  imposing  upon  him  a  liability  for  taxes.^^ 
Decisions  to  the  effect  that,  upon  the  satisfaction  of  the 
condition,  the  grantee's  title,  that  is,  his  ownership, 
relates  back  to  the  time  of  the  delivery,  for  the  puri)ose 
of  validating  an  intermediate  quit-claim  conveyance  by 
the  grantee,^2  appear  to  be  questionable,  as  are,  it  is 
submitted,  decisions  that,  while  a  conveyance  to  a 
non-existent  corporation  is  ordinarily  invalid,  sucli  a 
conveyance  is  valid  if  its  delivery  is  conditional  upon 
the  formation  of  the  corporation  named,  and  such  a 
corporation  is  subsequently  formed.^^         / 

As  the  death  of  the  grantor  before  the  satisfaction 
of    the    condition    does    not    affect  the    validity    of    the 

77.  Oliver  v.  Mowat,  34  Up.  the  time  of  the  delivery,  so  call- 
Can.  Q.  B.  472.  ed,  involved  in  the  manual  trans- 

78.  Perkins,  Conveyancing,  §  fer  of  the  instrument  by  the 
10.  depository     to     the     grantee,     ap- 

79.  Price   v.    Pittsburg   R.    Co.,  pears  questionable. 

34  111.  13;   Scott  v.  Stone,  72  Kan.  82.     Beekman  v.  Frost    (N.  Y.) 

545,   84   Pac.    117.  18   Johns.    544,    9    Am.    Dec.    246; 

80.  Hull  V.  Sangamon  River  Tooley  v.  Dibble  (N.  Y.)  2  Hill, 
Drainage  District,  219  111.  454,  641.  That  It  does  not  relate  back 
76  N.   E.  701.  for  this  purpose,  see  2  W^illianis, 

81.  Mohr  V.  Joslin,  142  N.  W.  Vendor  &  Purchaser  (2d  Ed.) 
981.  1251,    note     (d),    referred     to    in 

The    decision    in    McMurtrey    v.  10    Halsbury's    Laws   of    England. 

Bridges,    41    Okla.    264,    137    Pac.  390,  note  (m). 

721,     that     a     warranty     against  83.     Spring     Garden     Bank     v. 

taxes    at    the    "time    of    delivery"  Hulings    Lumber   Co.,    32    W.    Va. 

of  the  conveyance  meant  taxes  at  357,    3    L.    R.    A.    583;    Santaquin 


1782  Eeal  Peopeety.  [§  462 

delivery  made  by  him,  so  one  may  make  delivery  sub- 
ject to  a  condition  which  cannot,  by  its  terms,  be  satis- 
fied until  after  his  death.  A  judicial  statement  to  the 
effect  that  if  the  condition  cannot  be  satisfied  until 
after  the  grantor's  death,  the  instrument  is  neces- 
sarily testamentary  in  character,^^  appears  to  be  based 
on  the  mistaken  view  that  such  a  condition  makes  the 
transfer  revocable  so  long  as  the  grantor  lives. 

Since  so  long  as  the  condition  is  not  satisfied,  the 
title  does  not  pass,  it  results  that  when  it  becomes  as- 
sured that  the  condition  will  never  be  satisfied,  the 
instrument  loses  all  possible  efficacy.  In  such  case  the 
grantor  will  ordinarily  desire  to  have  the  instrument 
returned  to  him,  to  preclude  the  possibility^  of  its  after- 
wards being  utilized  to  his  detriment,  but  the  deposi- 
tary may  properly  retain  the  instrument  so  long  as 
there  is  the  slightest  uncertainty  as  to  the  ultimate  satis- 
faction of  the  condition.  Occasional  expressions*^ 
to  the  effect  that  the  action  of  the  depositary  in  retain- 
ing the  instrument  or  returning  it  to  the  grantor  has  in 
itself  some  effect  on  the  rights  of  the  grantor  and  gran- 
tee are,  it  is  submitted,  erroneous.  If  the  condition 
can  never  be  satisfied,  the  instrument  can  never  be 
operative,  regardless  of  who  has  the  possession,  and  if 
the  condition  is  satisfied,  that  the  instrument  has  in 
some  way  passed  into  the  possession  of  the  grantor 
does  not  prevent  its  operation.*'^ 

Min.  Co.  V.  High  Roller  Min.  Co.,  Cas.    1915C,    373,    135    Pac.    201; 

25    Utah,    282,    71    Pac.    77.      In  Gammon     v.     Bunnell,     22     Utah, 

these  two   cases  a  significance   is  421,   64   Pac.   958. 

imputed  to  the  "second  delivery"  85.     Taft  v.  Taft,  59  Mich.  185, 

to  which  it  is  not  entitled.  60    Am.    Rep.    291,    approved     in 

84.     Dettmer    v.     Behrens,     106  Culy    v.    Upham,    135    Mich.    131, 

Iowa,   585,    68   Am.    St.   Rep.   32?;  106,  Am.  St.  Rep.  388. 

Nolan    V.    Otney,    75    Kan.    311,    9  86.     Brown     v.     Allbright,     110 

L.    R.    A.     (N.    S.)     317,    89    Pac.  Ark.    394,   Ann.    Cas.    1915D,    692, 

690;      Stockwell     v.     Shalit,     204  161   S.  W.   1036;    Hall  v.  Yaryan, 

Mass.    270,    90    N.    B.    570;    Jack-  25  Idaho,  470,  138  Pac.  339. 

son  v.  Jackson,   67   Ore.   44,  Ann.  87.     Ante,  this  section,  note  69. 


§  462]  Transfer  Inter  Vivos.  1783 

The  cases  upon  the  question  of  the  burden  of  proof 
in  connection  with  a  conditional  delivery  are  few  and 
not  entirely  satisfactory.  In  view  of  the  ordinary 
presumption  of  delivery  from  the  grantee's  possession 
of  the  instrument,*"^  it  would  seem  that,  if  the  grantee 
has  such  possession,  it  is  for  the  grantor  to  show  that 
though  the  instrument  was  delivered,  the  delivery  was 
conditional,'^'*''  and  for  the  grantee  to  show  that  the 
condition  was  satisfied.-^'' 

Delivery    conditioned    on    death.      Not    infre- 


quently the  grantor  hands  the  instrument  to  a  third  per- 
son with  a  request  or  direction  that  he  hand  it  to  the 
grantee  named  upon  the  grantor's  death,  or  otherwise 
indicates  his  intention  that  it  shall  become  fully  opera- 
tive only  upon  his  death.  Such  action  has  usually  been 
regarded  as  involving  a  delivery  of  a  conditional  or 
quasi-conditional  character,  in  that  an  instrument  so 
delivered  does  not  operate  in  exactly  the  same  manner 
in  which  it  would  have  operated  had  there  been  no  refer- 
ence to  the  grantor's  death.  There  is,  however,  ati 
obvious  distinction  betw^een  such  a  delivery  and  an 
ordinary  conditional  delivery.  In  the  latter  case  the 
condition  may  never  be  satisfied,  while  in  the  former 
the  condition,  that  of  death,  must  necessarily  be  satis- 
fied. A  delivery  conditioned  upon  a  condition  whicli 
cannot  fail  to  be  satisfied  is  strictly  speakinsi',  not  a 
conditiv)nal  delivery.  The  courts  might  have  taken 
this  view,  that  such  a  delivery  is  not  properly  subject; 
to  any  condition,  and  that  consequently  the  instrument 
operates  exactly  as  if  there  had  been  no  reference  to  the 
grantor's   death,   l)ut   this    they  have  not   done.      Tliey 

88.     Ante,   §   461,   note  67.  Kavanaugh,   260    111.    179,    11)3,    N. 

88a.     Evans  v.  Gibbs,  6  Humph.  E.    65. 
(Tenn.)      405;      Union     Bank     v.  88b.     Black    v.    Shreve.    13    N. 

Ridgely,     1     Harr.     &     G.     (Md.)  J.   Eq.    455;    Kavanaugh   v.    Kava- 

324;    Black    v.    Shreve,    13    N.    J.  naugh,    260    111.    179,    103    N.    E. 

Eq.    455.      But   see   Kavanaugh   v.  65.      Contra,    Swain    v.    McMillan, 

30  Mont.   433,  76  Pac.  94.1. 


1784  Real  Property.  [§  462 

have  regarded  the  reference  to  death  in  such  case, 
in  connection  with  the  delivery,  as  in  some  way  aifect- 
ing  the  operation  of  the  conveyance,  without,  however, 
any  entirely  satisfactory  elucidation  of  the  matter. 

The  courts  have  not  infrequently  said  that,  upon 
such  a  delivery,  the  title  passes  immediately,  subject  to 
a  life  estate  in  the  grantor,^^  or  with  the  right  of 
possession  postponed.^"  If  this  means  that  a  con- 
veyance so  delivered  creates  two  estates,  a  particular 
estate  for  life  in  the  grantor  and  an  estate  in  the 
nature  of  a  remainder  or  reversion  in  the  grantee,  the 
propriety  of  the  statement  appears  to  be  somewhat 
open  to  question.  Thus  to  give  to  a  conveyance  in  terms 
creating  only  an  estate  in  fee  simple,  the  additional 
effect  of  creating  an  estate  for  life  in  the  grantor,  does 
considerable  violence  to  its  language,  and  furthermore 
it  gives  to  the  matter  of  delivery  an  operation  to  which 
it  is  not  entitled.  The  function  of  delivery  is  to  determine 
whether  the  instrument  shall  be  operative,  not  the 
estate  or  estates  which  the  instrument  shall  create  when 
it  does  become  operative. 

Another  theory  which  may  be  suggested  as  to  such  a 
delivery  with  reference  to  the  grantor's  death  is  that, 
by  reason  of  the  language  used  at  the  time  of  handing 
the  instrument  to  its  custodian,  the  conveyance,  though 
in  terms  creating  a  vested  estate  in  fee  simple  in  the 
grantee,  creates  merely  a  prospect  of  an  estate,  which 

89.     Bury     v.     Young,     98     Cal.  797;      Maxwell     v.     Jlarper,      51 

446,  35  Am.  St.  Rep.  186,  33  Pac.  Wash.  351,  98  Pac.  756. 

338;     Hunt    v.    Wicht,     174     Cal.  90.     Kirkwood     v.     Smith,     212 

205,   162   Pac.   639;    GrlUey  v.   At-  III.   395,    72    N.    E.    427;    Owen   v. 

kins,    78    Conn.    380,    4    L.    R.    A.  Williams,   114   Ind.    179,   15  N.   E. 

(N.    S.)     816,    112    Am.    St.    Rep.  678;    Gideon    v.    Gideon,    99    Kan. 

152,     62     Atl.     337;     Wheeler     v.  332,     161     Pac.     595;      Meech     v. 

Loesch,    51    Ind.    App.    562,   99    N.  Wilder,    130    Mich.    29,    89    N.    W. 

E.    502;     Rowley    v.    Bowyer,    75  556;   Dickson  v.  Miller,  124  Minn. 

N.      J.      Eq.      80,      71      Atl.      398;  346,    145    N.    W.    112;     Shaffer    v. 

Arnegaard  v.  Arnegaard,  7  N.  D.  Smith,     53    Okla.    352,    156    Pac. 

475,    41    L.    R.    A.    258,    75    N.    W.  1158. 


§  462]  Transfer  Inter  Vivos.  1785 

will  ripen  into  a  vested  estate  only  on  the  death  of  the 
grantor,  as  if  a  springing  nse  had  been  created,  the 
fee  simple  remaining  in  the  meanwhile  in  the  grantor. 
Such  a  result  may  be  attained  by  regarding  a  delivery 
with  reference  to  the  grantor's  death  as  but  one  case 
of  conditional  delivery,  ignoring  the  fact  that  the  condi- 
tion named,  that  of  death,  is  certain  to  be  satisfied.  This 
involves  a  fiction,  it  is  true,  but  it  is  a  beneficial  fiction, 
conducive  to  simnlicity  and  harmony,  as  bringing  into 
a  single  categoiT  all  the  cases  of  qualified  delivery. 

Applying  this  latter  theory,  in  accordance  with  the 
views  previously  indicated,  while  the  delivery  is  to  be 
regarded  as  occurring  at  the  time  at  which  it  actually 
does  occur,  the  title  does  not  pass,  that  is,  the  grantee 
does  not  acquire  any  estate,  until  the  death  of  the  gran- 
tor. The  delivery  is  etTective  as  against  subsequent 
donees,  grantees  and  attaching  and  judgment  creditors, 
except  in  so  far  as  they  stand  in  the  position  of  innocent 
purchasers  for  value.^^  And  so  the  death  of  the  grantee 
after  the  delivery  and  before  the  grantor's  death  does 
not  atfect  the  validity  of  the  delivery  and,  upon  the 
grantor's  death,  an  estate  becomes  vested  in  the  gran- 
tee's heir.^2  q^^  tj-^g  other  hand,  no  estate  vests  in  the 
grantee  or  grantee's  heir  until  the  grantor's  death, 
until,  that  is,  the  condition  named  is  satisfied. 

That  the  grantor,  in  handing  the  instrument  to  the 
depositary,  retains   a   right  to  control  its  operation,  a 

91.     To    this    effect    appear    to  mell  v.   Shirley,   69   Ohio   St.   187, 

be  Wittenbrock  v.  Cass,  110   Cal.  persons   who    gave   credit   to   the 

1,  42  Pac.  300;   Grilley  v.  Atkins,  grantor   in  ignorance  of  the   con- 

78  Conn.  380,  4  L.  R.  A.    (N.  S.)  veyance  so   delivered   were   given 

816,  112  Am.  St.  Rep.  152,  62  Atl.  priority,  and  in  Ladd  v.  Ladd,  14 

337;  Nowakowski  v.  Sobeziak,  270  Vt.  185,  the  widow  by  a  marriage 

111.  622,  110  N.  E.  809;    Smiley  v.  subsequent   to   such    delivery    was 

Smiley,    114    Ind.    258,    16    N.    E.  regarded   as   entitled    to   dower. 

585;    Owen  v.  Williams,   114   Ind.  92.     Stone     v.     Duvall.     77     111. 

179,     15    N.     E.     678;     Brown    v.  475.      And    compare    Stonehill    v. 

Austen  (N.  Y.)  35  Barb.  341;  Ran-  Hastings.    202    N.    Y.    115,    91    N. 

ken    V.    Donovan,    166    N.    Y.    626,  E.    1068. 
46   App.   Div.   225.     But   in   Rath- 


178G 


Real  Property. 


[§  462 


right,  for  instance,  to  withdraw  and  cancel  it,  precludes 
the  physical  transfer  to  the  depositary  from  operating 
as  a  delivery,  in  the  case  of  an  instrument  which  is  to 
take  effect  on  the  grantor's  death,'*'^  as  in  the  case  of 
an  instrument  which  is  to  take  effect  on  the  satisfaction 
of  any  other  condition.'^*  As  before  remarked,  a  delivery 
which  the  grantor  can,  at  his  option,  treat  as  not  a 
deliver}^  is  incomprehensible,  and  cases  which  recognize 
a  delivery  in  spite  of  such  retention  of  control,-*^  cannot 
he  supported  on  principle.  If,  however,  no  such  power 
of  control  is  retained,  the  mere  fact  that  the  depositary 
allows  the  grantor  to  resume  possession  of  the  instru- 
ment,'''^  or  that  he  would  do  so  if  requested,''''^  does  not 
affect  the  fact  of  deliverv. 


93.  Seeley  v.  Curts,  180  Ala. 
445,  Ann.  Cas.  1915C,  381,  61  So. 
807;  Bury  v.  Young,  98  Cal.  446, 
35  Am.  St.  Rep.  186,  33  Pac.  338; 
Williams  v.  Kidd,  170  Cal.  631, 
Ann.  Cas.  1916E,  703,  151  Pac. 
1;  Wilson  v.  Wilson,  158  111.  567, 
49  Am.  St.  Rep.  176;  Kunkel  v. 
Johnson,  268  111.  422,  109  N.  E. 
279;  Osborne  v.  Eslinger,  155 
Ind.  351,  80  Am.  St.  Rep.  240; 
Brown  v.  Brown,  66  Me.  316; 
Burk  V.  Sproat,  96  Mich.  404, 
55  N.  W.  985;  Dickson  v.  Miller, 
124  Minn.  346,  145  N.  W.  112; 
Cook  V.  Brown,  34  N.  H.  460; 
Saltzsieder  v.  Saltzsieder,  219 
N.  Y.  523,  114  N.  E.  856;  Hud- 
dleston  v.  Hardy,  164  N.  C.  210, 
80  S.  E.  158;  Arnegaard  v. 
Arnegaard,  7  N.  D.  475,  41  L.  R. 
A.  258,  75  N.  W.  797;  Williams 
V.  Schatz,  42  Ohio  St.  47;  Thrush 
V.  Thrush,  63  Ore.  143,  125  Pac. 
267,  126  Pac.  994;  Johnson  v. 
Johnson,  24  R.  I.  57;  Showalter 
V.  Spangler,  93  Wash.  43,  160 
Pac.  1042;  Williams  v.  Daubner, 
103    Wis.    521,    74    Am.    St.    Rep. 


902. 

94.  Ante,  this  section,  notes 
29-35. 

95.  Woodward  v.  Camp,  22 
Conn.  457  (but  see  Grilley  v. 
Atkins,  78  Conn.  380,  4  L.  R.  A. 
(N.  S.)  816,  112  Am.  St.  Rep. 
154,  62  Atl.  337)  ;  Lippold  v. 
Lippold,  112  Iowa,  134,  84  Am. 
St.  Rep.  331;  Daggett  v.  Simonds, 
173  Mass.  340,  46  L.  R.  A.  332; 
Ruggles  V.  Lawson,  13  Johns. 
(N.  Y.)  285,  7  Am.  Dec.  375; 
Henry  v.  Phillips,  105  Tex.  459, 
151  S.  W.  533. 

96.  Tweedale  v.  Barnett,  172 
Cal.  271,  156  Pac.  483;  Foreman 
V.  Archer,  130  Iowa,  49;  Peterson 
V.  Bisbee,  191  Mich.  439,  158 
N.  W.  134;  Thrush  v.  Thrush, 
63  Ore.  143,  125  Pac.  267',  126 
Pac.  994.  But  this  has  been 
referred  to  as  evidence  that  there 
was  originally  no  valid  delivery. 
Tweedale  v.  Barnett,  172  Cal. 
271,  156  Pac.  483;  O'Brien  v. 
O'Brien,  19  N.  D.  713,  125  N.  W. 
307. 

97.  Loomis      v.      Loomis,      178 


§  462]  Transfer  Inter  Vivos.  1787 

Decisions  to  the  effect  that  there  is  no  valid  de- 
livery if  it  is  conditioned  on  the  grantor's  death  within 
a  period  named,''^  or  on  his  death  before  the  death  of 
the  grantee,"^  appear  to  be  decidedly  questionable. 
They  are  based  on  the  assumption,  erroneous,  it  is  sub- 
mitted, that  in  such  case  the  grantor  retains  control  of 
the  operation  of  the  instrument.  It  would  hardly  be 
contended  that  in  the  analogous  case  of  a  delivery  con- 
ditioned on  the  payment  of  the  purchase  money  within 
a  time  named,  the  grantor  retains  such  control,  and 
that  there  is  consequently  no  valid  delivery.  That  the 
grantor  expressly  retains  the  privilege  of  cancelling  the 
instrument  in  case  the  grantee  fails  to  support  her  for 
the  balance  of  her  life  involves  no  such  retention  of 
control  as  to  affect  the  validity  of  the  delivery,  it  in- 
volving merely  a  right  to  terminate  the  estate  created, 
in  case  the  named  contingency  occurs.^ 

It  is  sometimes  said  of  such  a  delivery  witli  refer- 
ence to  the  grantor's  death,  that  the  deed  becomes  op- 
erative upon  its  'Vlelivery"  by  the  custodian  to  the  gran- 
tee after  the  grantor's  death,-  but,  it  is  conceived,  any 
such  reference  to  a  "second  delivery,"  so  called,  mean- 
ing thereby  a  manual  transfer  by  the  custodian  of  the 
instrument  to  the  grantee,  introduces  an  entirely  er- 
roneous conception.  Assuming,  as  is  no  doubt  ordinarily 
the  case,  that  the  grantor  intends  the  instrument  to  be 
fully  effective  upon  his  death  even  though  the  custodian 
does  not  hand  the  instrument  to  the  grantee,  such  i)liysi- 

Mich.   221,   144  N.   W.   552;    White  Mullis,    167    N.    C.    405,    83    S.    E. 

V.    Watts,    118    Iowa,    549,    92    N.  582.- 

W.    660;    Maxwell    v.    Harper,    51  2.     Owen   v.   Williams,    114    Iiul 

Wash.  351,  98  Pac.  756.  179,     15     N.     E.     678;      Haeg     v. 

98.  Long  V.  Ryan,  166  Cal.  Haeg,  53  Minn.  33,  55  N.  W. 
442,  137  Pac.  29.  1114;      Dickson      v.      Miller,      124 

99.  Kenney  v.  Parks,  125  Cal.  Minn.  346,  145  N.  W.  112;  Wil- 
146,  57  Pac.  772;  Dunlap  v.  Hams  v.  Latham,  113  Mo.  165,  20 
Marnell,  95  Neb.  535,  145  N.  W.  S.  W.  99;  Tooley  v.  Dibble,  2 
1017.  Hill.     (N.     Y.)     641 :     Rosseaii     v. 

1.  Malley  v.  Quinn,  132  Minn.  Bleau,  131  N.  Y.  177,  27  Am.  St. 
254,    15G    N.    W.    263;     Phifer    v.      Rep.    578,  30   N.    E.   52;    Stonehlll 


1788  Real  Property.  [§  463 

cal  transfer  to  the  grantee  is  absolutely  immaterial, 
and  the  instrument  becomes  operative  upon  his  death 
by  reason  of  *'the  first  and  only  delivery.  "^  If  the 
grantor  intends  such  a  manual  transfer  to  be  a  part  of 
the  condition  of  the  delivery,  it  must  of  course  be  made 
in  order  to  render  the  instrument  operative,  but  the 
manual  transfer  would  not  constitute  the  delivery  of 
the  conveyance,  in  the  technical  sense.  This  has  already 
taken  place,  and  moreover  a  deed  of  conveyance  cannot 
be  delivered  after  the  death  of  the  grantor.^ 

§  463.  Acceptance.  In  many  of  the  states,  perhaps 
a  majority,  an  acceptance  of  the  conveyance  by  the 
grantee  named  therein  has  been  stated  to  be  essential  to 
its  validity.^  And  it  has  accordingly  been  decided  in  a 
number  of  cases  that  the  conveyance  is  not  effective  as 
against  the  claim  of  a  third  person  which  accrued,  by 
reason  of  attachment,  recovery  of  a  judgment,  or 
purchase  for  value,  between  the  time  of  delivery  of  the 
instrument  and  the  grantee's  subsequent  assent  thereto.^ 

V.    Hastings,    202    N.    Y.    115,    94  v.   Houlton,    119   Md.   180,   86  Atl. 

N.  E.  1068;    Crooks  v.  Crooks,  34  514;    Meigs   v.   Dexter,    172   Mass. 

Ohio    St.    610;    Stephens   v.   Rine-  217,     52     N.     E.     75;     Watson    v. 

hart,    72    Pa.    St.    434;    Wilson    y.  Hillman,   57  Mich.   607,  24  N.  W. 

Wilson,     32     Utah,     169,    89    Pac.  663;    Miller   v.    McCaleb,   208   Mo. 

643;   Ladd  v.  Ladd,  14  Vt.  185.  562,    106    S.   W.    655;    Rennebaum 

3.  Per  Hosmer,  C.  J.,  in  Stew-  v.   Rennebaum,   78  N.  J.   Eq.   507, 
art  V.  Stewart,  5  Conn.  317.  '79    Atl.    309,     79    N.    J.    Eq.    654, 

4.  Ante,   §   461,    note  59.  83      Atl.      1118;       Arnegaard      v. 

5.  Russell  V.  May,  77  Ark.  89,  Arnegaard,  7  N.  D.  475,  41  L. 
90  S.  W.  617;  Hibberd  v.  Smith,  R.  A.  258,  75  N.  W.  797; 
67  Cal.  547,  56  Am.  Rep.  726;  Couch  v.  Addy,  35  .  Okla.  355, 
Knox  V.  Clark,  15  Colo.  App.  356,  129  Pac.  709;  Larisey  v.  Larisey, 
62  Pac.  334;  Stallings  v.  Newton,  93  S.  C.  450,  77  S.  E.  129;  Reid 
110  Ga.  875,  36  S.  E.  227;  Hulick  v.  Gorman,  37  S.  D.  314,  158 
V.  Scovil,  9  111.  159;  Abernathie  N.  W.  780;  Kempner  v.  Rosen- 
V.  Rich,  256  111.  166,  99  N.  E.  thai,  81  Tex.  12,  16  S.  W.  639; 
883;  Woodbury  v.  Fisher,  20  Ind.  Welsh  v.  Sackett,  12  Wis.  243. 
387,  83  Am.  Dec.  325;  Kyle  v.  6.  Parmelee  v.  Simpson,  5 
Kyle,  175  Iowa,  734,  157  N.  W.  Wall.  (U.  S.)  81;  Hibberd  v. 
248;  Alexander  v.  De  Kermely,  Smith,  67  Cal.  547,  56  Am.  Rep. 
81  Ky.  345;  Gates  v.  Gates,  152  726;  Knox  v.  Clark,  15  Colo.  App. 
Ky.    47,    153    S.    W.    10;    Houlton  356,   62   Pac.   334;    Evans  v.  Cole- 


§  463:] 


Transfer  Inter  Vivos. 


1789 


A  conveyance  was  effective  at  common  law  although 
the  transferee  did  not  assent  thereto  or  even  know  there- 
of, he  always  having,  however,'  the  right  to  ''disclaim," 
that  is,  to  repudiate  the  conveyance  and  thereby  revest 
the  title  in  the  grantor.'  Such  is  the  rule  in  England  at 
the  present  day.®  And  in  spite  of  the  constant  assertion 
and  reassertion  by  the  courts  in  this  country  of  the 
necessity  of  acceptance,  it  is  difficult  to  avoid  the  con- 
clusion that  in  a  number  of  states  the  rule  in  this  regard 
is  the  same  as  in  England,  that  no  acceptance  of  the 
conveyance  is  necessary,  though  the  grantee  may,  if  he 
choose,  dissent  and  disclaim.^'*  That  no  acceptance  is 
necessary  appears  to  be  involved  in  the  statement,  made 
with  great  frequency^  that,  provided  the  conveyance  can 
be  regarded  as  beneficial  in  character,  and  as  not  in- 
volving any  burden  on  the  grantee,  his  acceptance  will 
be  presumed  in  the  absence  of  any  showing  of  dissent,'' 


man,  101  Ga.  152,  28  S.  E.  645; 
Partridge  v.  Chapman,  81  111. 
137;  Woodbury  v.  Fisher,  20  Ind. 
387,  83  Am.  Dec.  325  (but  see 
Emmons  v.  Harding,  162  Ind. 
154,  1  Ann.  Cas.  864,  70  N.  E. 
142);  Day  v.  Griffith,  15  Iowa, 
104;  Bell  v.  Farmers'  Bank  of 
Kentucky,  11  Bush  (Ky.)  34, 
21  Am.  Rep.  205;  Simpson  v. 
Yocum,  172  Ky.  449,  189  S.  W. 
439;  Field  v.  Fisher,  65  Mich. 
606,  32  N.  E.  838;  Kuh  v.  Gar- 
vin, 125  Mo.  547,  28  S.  W.  847; 
Fischer  Leaf  Co.  v.  Whipple,  51 
Mo.  App.  181;  Rogers  v.  Heads 
Iron  Foundry,  51  Neb.  52,  37  L. 
R.  A.  433;  Derry  Bank  v.  Web- 
ster, 44  N.  H.  264;  Kempner  v. 
Rosenthal,  81  Tex.  12,  16  S.  W. 
639;  Welch  v.  Sackett,  12  Wis. 
243. 

7.  Litt.  §§  684,  685;  Butler  & 
Baker's  Case,  3  Co.  Rep.  260; 
Thompson  v.  Leach,  2  Vent.  198; 

2  R.  P.— 38 


Sheppard's  Touchstone,  284.  See 
Skipwith's  Ex'r  v.  Cunningham, 
8  Leigh    (Va.)    272. 

8.  Siggers  v.  Evans,  2  El.  & 
Bl.  367;  Standing  v.  Bowring, 
31  Ch.  D.  286;  Mallott  v.  Wilson 
(1903),  2  Ch.  494.  See  article 
on  the  nature  of  disclaimer  by 
F.  E.  Farrer,  Esq.,  in  32  Law 
Quart.    Rev.    83. 

8a.  See  editorial  note,  19 
Harv.  Law  Rev.  at  p.  612;  Harrl- 
man,  Contracts,  (2d  Ed.)  §§  82, 
83. 

9.  Arrington  v.  Arrlngton,  122 
Ala.  510,  26  So.  152;  Graham 
v.  Suddeth,  97  Ark.  283,  133  S. 
W.  1033;  De  Levillian  v.  Edwards. 
39  Cal.  120;  Merrills  v.  Swift,  18 
Conn.  257,  46  Am.  Dec.  315: 
Moore  V.  Giles,  49  Conn.  570; 
Baker  v.  Hall,  214  111.  364,  73  N. 
E.  351;  Bremmerman  v.  Jennings, 
101  Ind.  253;  Emmons  v.  Harding. 
162    Ind.   154,   70   N.   E.   142;    Pod- 


1790 


Real  Property. 


[§  463 


and  this  though  he  is  in  entire  ignorance  of  the  con- 
veyance.^^ Such  a  statement  represents  a  tendency, 
which  appears  to  be  open  to  criticism,^  ^  to  express  rules 
of  substantive  law  in  the  form  of  rules  of  presumption, 
a  mode  of  expression  which  is  particularly  objectionable 
w^hen,  as  in  this  case,  the  thing  presumed  to  exist  is  a 
thing  which  concededly  does  not  exist.  If  there  is  no 
acceptance,  no  rule  of  law,  whether  or  not  designated  a 
presumption,  can  create  an  acceptance.  And  the  only 
conclusion,  it  is  submitted,  to  be  drawn  from  the  deci- 
sions upholding  a  beneficial  conveyance  even  in  the  ab- 


hajsky's  Estate,  137  Iowa,  745, 
115  N.  W.  596;  Gideon  v.  Gideon, 
99  Kan.  322,  161  Pac.  595;  Jeffer- 
son County  Building  Ass'n  v.  Heil, 
81  Ky.  513;  Houlton  v.  Houlton, 
119  Md.  180,  86  Atl.  514;  IngersoU 
V.  Odendahl,  136  Minn.  428,  162 
N.  W.  525;  Metcalfe  v.  Brandon, 
60  Miss.  685;  Ensworth  v.  King. 
50  Mo.  477;  Jones  v.  Swayze,  42 
N.  J.  L.  279;  Rennebaum  v. 
Rennebaum,  78  N.  J.  Eq.  427,  79 
Atl.  309.  79  N.  J.  Eq.  654,  83  Atl. 
1118;  Spencer  v.  Carr,  45  N.  Y. 
406.  6  Am.  Rep.  112;  Ten  Eyck. 
V.  Whitbeck,  156  N.  Y.  341,  50 
N.  E.  963;  Lynch  v.  Johnson, 
171  N.  C.  611,  89  S.  E.  61;  Arne- 
gaard  v.  Arnegaard,  7  N.  Dak. 
475,  41  L.  R.  A.  258,  75  N.  W. 
797;  Shaffer  v.  Smith,  53  Okla. 
352,  156  Pac.  1188  (voluntary 
deed);  In  re  Braley's  Estate,  85 
Vt.  351,  82  Atl.  5;  Guggenheimer 
V.  Lockridge,  39  W.  Va.  457,  19 
S.  E.  874.  In  Ward  v.  Ritten- 
house  Coal  Co.,  152  Ky.  228,  153 
S.  W.  217,  it  is  said  that  ac- 
ceptance is  not  to  be  implied  or 
presumed  if  the  grantee  is  com- 
petent and  is  present  in  person. 
10.     Elsberry  v.  Boykin,  65  Ala. 


336;  Gulf  Red  Cedar  Co.  v. 
Crenshaw,  169  Ala.  606,  53  So. 
812;  Russell  v.  May,  77  Ark.  89, 
90  S.  W.  617;  Tibballs  v.  Jacobs, 
31  Conn.  428;  Graham  v.  Suddeth, 
97  Ark.  283,  133  S.  W.  1033;  Burch 
V.  Nicholson,  157  Iowa,  502,  137 
N.  W.  1066;  Wuester  v.  Folin,  60 
Kan.  334,  56  Pac.  490;  Clark  v. 
Creswell,  112  Md.  339,  21  Ann. 
Cas.  338,  76  Atl.  579;  Vreeland  v. 
Vreeland,  48  N.  J.  Eq.  56,  21  Atl. 
627;  Everett  v.  Everett,  48  N. 
Y.  218;  Munoz  v.  WUson,  111  N. 
Y.  295,  18  N.  E.  855;  Robbins 
V.  Roscoe,  120  N.  C.  79,  38  L.  R. 
A.  238,  58  Am.  St.  Rep.  774;  Mit- 
chell's Lessee  v.  Ryan,  3  Ohio 
St.    377. 

So  acceptance  has  been  said  to 
be  presumed  in  the  case  of  a  de- 
livery on  condition  or  to  take 
effect  on  the  grantor's  death. 
Kyle  V.  Kyle,  175  Iowa,  734,  157 
N.  W.  248.  And  the  grantee's 
ignorance  of  the  conveyance  is 
immaterial.  Roepke  v.  Nutz- 
mann,  95  Neb.  589,  146  N.  W.  939; 
Saltzsieder  v.  Saltzsieder,  219  N. 
Y.   523,   114   N.   E.   856. 

11.  See  Thayer,  Preliminary 
Treatise    on    Evidence,    pp.    326, 


§  463'J  Transfer  Inter  Vivos.  1791 

seiice  of  acceptance,  is  that  acceptance  is  not  necessary 
in  the  case  of  such  a  conveyance.  The  adoption  of  the 
double  fiction,  that  acceptance  is  necessary,  and  that  it 
exists  although  confessedly  it  does  not  exist,  has,  it  is 
conceived,  no  reason  whatsoever  of  policy  or  conveni- 
ence in  its  favor. 

The  assertion  of  a  presumption  of  acceptance,  as  it 
appears  in  the  cases  referred  to,  is  objectionable,  it  is 
submitted,  not  only  as  involving  the  introduction  of 
confusing  and  unnecessary  fictions,  but  also  because  it 
in  effect  ditferentiates,  as  regards  the  necessity  of  ac- 
ceptance, between  conveyances  which  are  and  are  not 
beneficial.  Since  the  grantee,  so  long  as  he  has  not  ac- 
tually accepted  the  transfer,  can  disclaim,  and  so  oycbide 
any  possibility  of  prejudice  to  him  by  reason  of  the  con- 
veyance, it  is  not  readily  perceived  why  the  courts 
should  undertake  to  discriminate  in  this  regard.  AVheth- 
er  the  conveyance  shall  be  eventually  availed  of  by  the 
grantee  is  a  matter  for  him  to  decide,  and  it  does  not 
appear  to  be  the  province  of  the  court  to  indulge  in  sup- 
positions as  to  his  probable  action  in  this  respect.  If 
acceptance  is  otherwise  not  necessary,  why  should  the 
non  beneficial  character  of  the  conveyance  render  it 
necessary?  If  it  is  otherwise  necessary,  why  should  the 
beneficial  character  of  the  conveyance  render  it  unneces- 
sary? Such  a  distinction,  based  on  the  beneficial  or 
onerous  character  of  the  conveyance,  has  been  re- 
pudiated in  England,^-  but  has  been  applied  in  several 
cases  in  this  countrv,^^  with  the  effect  of  invalidatinfr  a 

335,    351;     2    Chamberlayne,    Evi-  courts    should    be    asked    in    each 

dence,    §§    1087,    1145,    114(;,    1160  particular    instance    if    the    deed 

et  seq.  may  not  be  considered  onerous." 

12.     "Almost  every  conveyance,  Campbell,    C.    J.,     in     Siggers    v. 

in  truth,   entails   some  charge   or  Evans,   5    El.   &   Bl.    367. 

obligation  vv^hich  may  be  onerous  13.     Occasionally    a    conveyance 

in    the    way    of    covenant    or    lia-  has   been    regarded    as    not    bene- 

billty;     and    we    think    It    much  ficial  because  It  was  made  in  the 

safer      that      one      general      rule  performance  of  a  contract  of  sale, 

should     prevail,     than     that     the  which   Imposed   an   obligation   for 


1792 


Real  Peopeety. 


[§  463 


conveyance  not  actually  accepted,  because  not  regarded 
by  the  court  as  beneficial  in  character,  although,  in  these 
same  jurisdictions,  a  ''beneficial"  conveyance  would 
have  been  upheld  without  any  acceptance.  If  an  actual 
assent  or  acceptance,  it  may  be  remarked,  is  to  be  re- 
garded as  necessary  whenever  any  burden  or  obligation 
is  imposed  on  the  grantee,  it  is  somewhat  difficult  to  un- 
derstand the  decisions,  hereafter  referred  to^^  which  up- 
hold the  validity  of  a  conveyance  in  trust,  although  the 
trustee  has  not  assented  thereto. 

The  view  that  assent  or  acceptance  on  the  part  of 
the  grantee  is  necessary  appears  to  have  had  its  origin, 
for  the  most  part,  in  the  notion  that  a  conveyance  is  a 
contract,  and  that  consequently  there  must  be  a  meeting 
of  minds. ^^  But  a  conveyance  is  not  a  contract,^^  and 
there  is  no  intrinsic  difficulty  in  regarding  a  conveyance 
as  effective  to  vest  property  in  the  grantee  even  before 
the  latter  has  consented  to  receive  it.    In  the  case  of  a 


the  (purchase  money  upon  the 
purchaser.  Derry  Bank  v.  Web- 
ster, 44  N.  H.  268;  Boardman  v. 
Dean,  34  Pa.  252;  Wood  v.  Mont- 
pelier,  (Vt.)  82  Atl.  671.  And  a 
mortgage  or  conveyance  to  secure 
several  creditors  has  been  regard- 
ed as  not  beneficial  for  the  rea- 
son that  its  acceptance  by  any 
one  of  the  creditors  might  result 
la  precluding  his  recovery  of  the 
whole  of  his  claim.  Johnson  v. 
Farley,  45  N.  H.  505.  A  convey- 
ance made  to  one  merely  as  a 
conduit  of  title  has  been  regarded 
as  not  beneficial  for  this  purpose. 
Little  V.  Eaton,  267  111.  263,  108 
N.  E.  727.  Compare  Ferrell  v. 
Childress,  172  Ky.  160,  189  S.  W. 
1149.  where  a  conveyance  so 
made  was  regarded  as  properly 
accepted  by  the  person  beneficial- 
ly   interested    in    its    execution. 


14.  Post,  this  section,  notes 
19,   20. 

15.  See  Welch  v.  Sackett,  12 
Wis.  243;  Rogers  v.  Heads  Iron 
Foundry,  51  Neb.  52,  37  L.  R.  A. 
433. 

16.  Anson,  Contracts  (13th 
Ed.)  3,  4;  Pollock,  Contracts,  Ap- 
pendix A;  Hammon,  Contracts,  §§ 
6,  7,  note  11;  Clark  Contracts, 
IL 

Nor  does  a  contract  necessarily 
Involve  a  meeting  of  the  minds 
of  the  parties.  "The  contractual 
obligations  which  the  common 
law  recognized  were  enforced, 
and  are  still  enforced,  not  be- 
cause those  obligations  are  the 
result  of  agreement,  but  because 
certain  forms  of  procedure  af- 
forded remedies  for  certain 
wrongs."  Harriman,  Contracts. 
2d  Ed.)    §  61L 


§  463']  Transfer  Inter  Vivos.  1793 

devise,  as  well  as  in  that  of  a  transfer  by  operation  of 
law,  the  ownership  passes  without  reference  to  whether 
the  transferee  has  consented  to  take  the  property,  and 
the  same  might  well  occur  in  the  case  of  a  voluntary 
transfer  inter  vivos,  provided  only  the  transferee  has  the 
privilege  of  subsequently  refusing  the  transfer.^^  In 
support  of  this  view  reference  may  be  made  to  the 
case  of  conveyances  to  infants,  and  persons  non  compos 
mentis,  and  to  that  of  conveyances  in  trust,  discussed 
in  the  two  following  paragraphs. 

In  the  case  of  a  conveyance  to  an  infant,  or  to  a 
person  non  compos  mentis  the  courts,  even  those  which 
assert  most  positively  the  necessity,  in  the  ordinary 
case,  of  an  actual  acceptance,  undertake  to  avoid  the 
difficulty  of  requiring  acceptance  on  the  part  of  one  in- 
capable of  giving  it,  by  asserting  that  in  such  case  the 
assent  of  the  grantee  will  be  conclusively  presumed,  pro- 
vided at  least  the  conveyance  is  beneficial  in  character.^^ 
But,  as  before  remarked,  the  conceded  lack  of  acceptance 
cannot    well   be    supplied   by    a   presumption    that    the 

17.  If  a  father  should  die  les-  Thurman,  C.  J.,  in  Mitchell's 
tate,  devising  an  estate  to  his  Lessee  v.  Ryan,  3  Ohio  St.  377. 
daughter,  and  the  latter  should  18.  Staggers  v.  White,  121  Ark. 
afterwards  die  without  a  knowl-  328,  181 S.  W.  139;  Turner  v. 
edge  of  the  will,  it  would  hardly  Turner  173  Cal.  782,  161  Pac.  980; 
be  contended  that  the  devise  be-  Miller  v.  Meers,  155  111.  284,  40  N. 
came  void  for  want  of  acceptance,  E.  577;  Vaughan  v.  Godman,  94 
and  that  the  heirs  of  the  devisee  Ind.  191;  Tansel  v.  Smith,  49  Ind. 
must  lose  the  estate.  Neither  App.  263,  93  N.  E.  548,  94  N.  E. 
win  it  be  denied  that  equitable  890;  Fitzgerald  v.  Tvedt,  142 
estates  are  every  day  thrust  upon  Iowa,  40,  120  N.  "W.  465;  Combs 
people  by  deeds,  or  assignments,  v.  Ison,  168  Ky.  Ky.  728,  182  S. 
made  in  trust  for  their  benefit.  W.  953;  Campbell  v.  Kuhn,  45 
nor  win  It  be  said  that  such  Mich.  513,  40  Am.  Rep.  479;  Fen- 
beneficlarles  take  nothing  until  ton  v.  Fenton,  261  Mo.  202,  168 
they  assent.  Add  to  these  the  S.  W.  1152;  Chambers  v.  Cham- 
estates  that  are  thrust  upon  bers,  227  Mo.  262,  137  Am.  St. 
people  by  the  statute  of  descent.  Rep.  567,  127  S.  W.  86;  Davis  v. 
and  we  begin  to  '  estimate  the  Garrett,  91  Tenn.  147,  18  S.  W. 
value  of  the  argument,  that  a  113;  Bjmerland  v.  Eley,  15  Wash, 
man  shall  not  be  made  a  prop-  101,  45  Pac.  730. 
erty     holder     against     his     will. 


1794 


Real  Peopeety. 


[§  463 


grantee  would,  if  he  had  an  opportunity,  accept  the 
conveyance,  and  moreover,  even  supposing  this  could 
be  done,  the  presumed  acceptance,  in  the  case  of  a  con- 
veyance to  an  infant,  or  to  a  person  non  compos  mentis, 
would  be  an  acceptance  by  a  person  lacking  in  legal 
capacity,  and  therefore  a  nullity. 

In  the  case  of  a  conveyance  in  trust,  the  legal  'itle 
is  usually  regarded  as  vesting  in  the  trustee  without 
any  acceptance  by  him,  or  even  any  knowledge  on  his 
part  of  the  conveyance,^^  this  result  being  not  infre- 
quently attained  on  the  theory  of  a  presumption  of 
assent.^*^  Even  though  he  subsequently  dissents,  and 
refuses  to  accept,  the  conveyance  does  not  become  nuga- 
tory, but  equity  will  appoint  another  trustee. ^^  The 
equitable  interest  under  a  deed  of  trust  likewise  vests 
in  the  beneficiary  named  without  any  acceptance  thereof 


19.  Adams  v.  Adams,  21  Wall. 
(U.  S.)  185,  22  L.  Ed.  504;  Devol 
V.  Dye,  123  Ind.  321,  1  L.  R.  A. 
439;  Mlnot  v.  Tilton,  64  N.  H. 
371,  10  Atl.  682;  Gulick  v.  Gullck, 
39  N.  J.  Eq.  401;  Myrover  v. 
French,  73  N.  C.  609;  Read  v. 
Robinson,  6  Watts  &  S.  (Pa.) 
329;  First  Bank  v.  Holmes.  85 
Pa.  231;  Talbot  v.  Talbot,  32  R. 
I.  72,  Ann.  Cas.  1912C,  1221,  78 
Atl.  535;  Cloud  v.  Calhoun,  10 
Rich.  Eq.  (S.  Car.)  358;  Fur- 
man  V.  Fisher,  4  Cold.  (Tenn.) 
626,  94  Am.  Dec.  210;  Fletcher 
V.  Fletcher,  4  Hare  67;  Ames, 
Cases    on    Trusts     (2d    Ed.)     229. 

But  statements  are  occasionally 
found  to  the  effect  that  no  title 
vests  in  the  trustee  until  he  ex- 
pressly or  by  implication  accepts 
the  trust.  1  Perry,  Trusts,  § 
259,  Armstrong  v.  Morrill,  14 
Wall.  (U.  S.)  138;  Oxley  Stave 
Co.  V.  Butler  County,  121  Mo. 
614,     26    S.    W.    367;     McFall    v. 


Kirkpatrick,    236    111.    281,    86    N. 
E.  139. 

20.  Kennedy  v.  Winn,  80  Ala. 
165;  Devol  v.  Dye,  123  Ind.  321, 
7  L.  R.  A.  439;  Howry  v.  Gard- 
ner, 41  Ohio  St.  642;  McKinney 
V.  Rhoads,  5  Watts  (Pa.)  343; 
Eyrick  v.  Hetrick,  13  Pa.  488; 
Goss  v.  Singleton,  2  Head  (Tenn.) 
67;  Bowden  v.  Parrish,  86  Va. 
67,  19  Am.  St.  Rep.  873. 

21.  Irvine  v.  Dunham,  111  U. 
S.  327,  28  L.  Ed.  444;  Smith  v. 
Davis,  90  Cal.  25,  25  Am.  St. 
Rep.  92,  27  Pac.  26;  Dailey  v. 
New  Haven,  60  Conn.  314,  14  L. 
R.  A.  69,  22  Atl.  945;  Braswell 
v.  Downs,  11  Fla.  62;  French  v. 
Northern  Trust  Co.,  197  111.  30, 
64  N.  E.  105;  Brandon  v.  Carter, 
119  Mo.  572,  41  Am.  St.  Rep. 
673;  King  v.  Donelly,  5  Paige  (N 
Y.)  46;  Roseman  v.  Roseman,  127 
N.  C.  494,  37  S.  E.  518;  Talbot 
V.  Talbot,  32  R.  I.  72,  Ann.  Cas. 
1912C,    1221,    78    Atl.    535;    Cloud 


§  463:] 


Transfer  Inter  Vivos. 


1795 


by  him,  or  even  any  knowledge  by  him  of  the  trust.^^ 
It  is  sometimes  said,  in  this  connection,  that  one  is  pre- 
sumed to  accept  the  benefit  of  a  trust.^' 

The  courts,  in  referring  to  the  necessity  of  accep- 
tance, do  not  always  clearly  indicate  whether  it  is  to  be 
regarded  as  an  element  of  delivery,  or  as  something 
additional  to,  and  separate  from,  delivery.  Perhaps  they 
more  frequently  suggest  the  former  view,-^  and  this  they 
apparently  do  in  effect  when  they  state  that  the  grant- 
or's record  of  the  instrument  does  not  create  any  pre- 
sumption of  delivery  if  without  the  knowledge  or  assent 


V.  Calhoun,   10  Rich.  Eq.    (S.  C.) 
358;   Ames,  Cases  on  Trusts,  230. 

22.  Brooks  v.  Marbury,  11 
Wheat.  (U.  S.)  78;  Security  Trust 
&  Safe  Deposit  Co.  v.  Farrady,  9 
Del.  Ch.  306,  82  Atl.  24;  Koch 
V.  Streuter,  232  111.  594,  83  N. 
E.  1072;  Milholland  v.  Whalen, 
89  Md.  212,  44  L.  R.  A.  205,  43 
Atl.  43;  Boston  v.  Turner,  201 
Mass.  190,  87  N.  E.  634;  Mar- 
quette V.  Wilkinson,  119  Mich. 
414,  43  L.  R.  A.  840,  78  N.  W. 
474;  Gulick  v.  Gulick,  39  N.  J. 
Bq.  401;  Martin  v.  Funk,  75  N. 
Y.  134.  31  Am.  Rep.  446;  Moloney 
V.  Tilton,  22  N.  Y.  Misc.  682,  51 
N.  Y.  Supp.  682;  Breedlove  v. 
Stump,  3  Yerg.  (Tenn.)  257; 
Connecticut  River  Sav.  Bank  v. 
Albee's  Estate,  64  Vt.  571,  33  Am. 
St.  Rep.  944,  25  Atl.  487;  Skip- 
with's  Ex'r  v.  Cunningham,  8 
Leigh  (Va.)  272;  Fleenor  v. 
Hensley,  121  Va.  367,  93  S.  E. 
582;  See  McEwen  v.  Bamberger, 
3  Lea,  (Tenn.)   576. 

23.  Brunson  v.  Henry,  140  Ind. 
455,  39  N.  E.  256;  Emporia  First 
Nat.  Bank  v.  Ridenour,  46  Kan. 
718,  26  Am.  St.  Rep.  167;  H.  B. 
Cartwright  &  Bro.  v.  United 
States   Bank   &   Trust   Co.,   23   N. 


M.  82,  167  Pac.  436;  Stone  v. 
King,  7  R.  I.  358,  84  Am.  Dec. 
557;  Cloud  v.  Calhoun,  10  Rich. 
Eq.  (S.  C.)  358;  Furman  v. 
Fisher,  4  Coldw.  (Tenn.)  626,  94 
Am.    Dec.    557. 

24.  Stallings  v.  Newton,  110 
Ga.  875,  36  S.  E.  227;  Byers  v. 
Spencer,  101  111.  429,  40  Am.  Rep. 
212;  Bremmerman  v.  Jennings, 
101  Ind.  253;  O'Connor  v. 
O'Connor,  100  Iowa,  476,  69  N. 
W.  076;  Sullivan  v.  Sullivan,  179 
Ky.  686,  201  S.  W.  24;  Meigs  v. 
Dexter,  172  Mass.  217,  52  N.  E. 
75;  Miller  v.  McCaleb,  208  Mo. 
562,  106  S.  W.  655;  Jaskson  v. 
Phipps,  12  Johns.  (N.  Y.)  418; 
Spencer  v.  Carr,  45  N.  Y.  406,  6 
Am.   Rep.    112. 

Occasionally    it    has    been    said 
that  delivery  and  acceptance  must 
be  simultaneous.     Church  v.  Gil- 
man,    15    Wend.    (N.    Y.)    656,    30 
Am.  Dec.  82;    Hulick  v.  Scovll,   9 
111.   159.     Contra,  Sullivan  v.   Sul- 
livan,  179  Ky.  G86,  201   S.  W.   24 
Regan    v.    Howe,    121    Mass.    424 
Welch    v.    Sackett,    12    Wis.    243 
And    see    Stone    v.    New    England 
Box   Co..    216   Mass.   8,   102   N.   K. 
949. 


1796  Eeal  Peopekty.  [§  463 

of  the  grantee.-'^  There  would  seem,  however,  to  be 
some  difficulties  in  the  way  of  regarding  the  grantor's 
indication  of  intentioii  as  constituting  delivery  only 
when  accompanied  or  immediately  followed  hy  ac- 
ceptance. Adopting  such  a  view,  the  grantor  would, 
after  having  indicated  his  intention  that  the  conveyance 
should  operate,  have  the  right  until  acceptance  to  change 
his  intention,  and  to  dispose  otherwise  of  the  property, 
and  yet  the  cases  regard  his  indication  of  intention,  in 
the  case  both  of  conditionaP^  and  unconditional  deliv- 
ery,^'^  as  concluding  him  in  this  regard.  It  is  more 
satisfactory,  it  is  submitted,  conceding  that  acceptance 
is  necessary,  to  regard  it  as  something  outside  of  de- 
livery, as,  in  etfect,  an  indication  of  the  grantee's  inten- 
tion, as  delivery  is  an  indication  of  the  grantor's  in- 
tention.-^ The  contrary  vew,  above  referred  to,  is  ap- 
parently to  some  extent  the  outcome  of  the  mistaken 
tendency  to  regard  delivery  as  involving  a  manual 
transfer  of  the  instrument,  such  a  transfer  being  ordi- 
naril}'^  impossible  without  the  assent  of  the  person  to 
whom  the  transfer  is  made. 

The  acceptance  may,  it  has  been  said,  be  given  by 
another  person  acting  on  behalf  of  the  grantee,  such  ac- 
ceptance being  sufficient  if  afterwards  ratified  by  the 
grantee.^^  Such  a  statement  is  somewhat  ambiguous. 
If  it  means  that,  provided  an  unauthorized  person  ac- 

25.  Ante,  §  461,  note  84.  29.     Meigs  v.  Dexter,  172  Mass. 

26.  Ante,   §   462,  notes  31-36.  217,  52  N.  E.  75;   Couch  v.  Addy, 

27.  Ante,  §  461,  note  60.  35  Okla.  355,  129  Pac.  709. 

28.  Such  a  view  is  involved  in  In  Blackwell  v.  Blackwell,  196 
the  occasional  statements  that  the  Mass.  186,  12  A.  &  E.  Ann.  Cas. 
acceptance  may  be  given  by  the  1070,  it  was  decided  that  there 
grantee  even  after  the  grantor's  may  be  a  valid  acceptance  by  the 
death.  Gulf  Red  Cedar  Co.  v.  grantor  in  behalf  of  the  grantee, 
Crenshaw,  169  Ala.  606,  53  So.  whose  general  agent  he  was.  The 
812;  Cates  v.  Cates,  152  Ky.  47,  cases  cited  in  support  of  the  deci- 
153  S.  W.  10;  Burkey  v.  Burkey, —  sion  merely  involved  the  princi- 
Mo. — 175  S.  W.  623;  Taylor  v.  pie  that  no  manual  transfer  of 
Sanford,  108  Tex.- 340,  193   S.  W.  the  instrument  is  necessary. 

661. 


§  464]  Transfer  Inter  Vrv'os.  1797 

cepts  oil  behalf  of  tlie  grantee,  title  immediately  vests 
in  the  latter,  subject  to  an  option  on  liis  part  as  to 
whether  he  will  ratify  the  acceptance,  this  appears  to 
be  the  equivalent  of  a  statement  that,  although  there 
is  no  valid  acceptance,  title  immediately  passes  to  the 
grantee  subject  to  an  option  in  him  subsequently  to 
repudiate  the  transfer,  this  being  the  common  law  and 
present  English  rule.  It  may,  however,  mean  that  an 
unauthorized  acceptance  being  invalid,  title  does  not 
pass  until  the  grantee,  by  indicating  his  adoption  of 
the  acceptance,  in  effect  himself  accepts  the  conveyance, 
this  in  effect  recognizing  the  asserted  American  rule, 
that  the  grantee's  acceptance  is  necessary.  Whichever 
meaning  is  given  to  the  statement,  it  does  not  appear 
that  the  unauthorized  acceptance  has  any  legal  signifi- 
cance, the  grantee's  ratification  of  such  accoiDtance,  so 
called,  being  merely  his  acceptance  of  the  transfer,  of 
which  there  had  previously  been  no  valid  acceptance. 

§  464.  Execution  by  agent.  The  owner  of  land 
may  transfer  it,  not  only  by  himself  executing  the  in- 
strument of  transfer,  but  also  by  empowering  another 
so  to  do  in  his  absence.  The  execution  of  a  convey- 
ance by  the  agent  of  the  grantor,  in  the  grantor's  ab- 
sence, by  virtue  of  the  authority  given  the  agent  for 
this  purpose,  is  to  be  distinguished  from  the  case, 
before  referred  to,"^^  in  which  the  signing  of  an  instru- 
ment by  the  hand  of  another  is  adopted  by  the  grantor 
as  his  own  act,  this  being  for  all  purposes  his  own  sig- 
nature. 

A  written  instrument  by  which  one  is  authorized  to 
act  as  the  agent  of  another,  in  connection  with  the 
transfer  of  land,  as  in  otlier  connections,  is  frequently, 
indeed  ordinarily,  referred  to  as  a  power  of  attorney. 

The  common  law  rule  that  authority  to  execute  an 
instrument  under  seal  must  itself  be  under  seal  appears 
to    be    still    recognized    in    a    considerable    number    of 

30.     Ante,  §  457.  notes  76,  77. 


1798  Real  Property.  [§  464 

states,^^^  and,  in  so  far  as  a  seal  may,  in  a  particular 
jurisdiction,  be  necessary  to  the  legal  validity  of  a  con- 
veyance, an  authority  to  one  as  agent  to  execute  a  con- 
veyance must  be  under  seal.^^  But  without  reference  to 
such  a  common  law  requirement  of  a  seal,  which  ob- 
viously involves  a  requirement  of  a  written  instrument, 
the  statutes  of  most  of  the  states  expressly  require  such 
an  authority  to  be  in  writing,  and  some  require  it  to  be 
under  seal.^^ 

Since  delivery  is  part  of  the  execution  of  the  in- 
strument, it  would  seem  that,  in  so  far  as  a  written  or 
sealed  authority  may  be  necessary  to  enable  an  agent  to 
sign  or  seal  a  conveyance  of  land,  such  an  authority  is 
also  necessary  to  enable  him  to  deliver  the  instrument, 
•The  question  has  been  previously  discussed.^^ 

It  is  a  technical  rule  of  the  common  law  that  only 
those  are  bound  by  a  sealed  instrument  who  purport  to 
be  parties  thereto  and  in  whose  names  it  is  signed  and 
sealed,^^  and,  applying  this  rule  it  has  occasionally  been 
decided  that  a  conveyance  executed  by  an  agent  was 
insufficient  because  it  purported  to  be  the  deed,  not  of 
the  intended  grantor,  but  of  the  agent  himself,  even 
though  the  body  of  the  instrument  indicated  that  the 
person  who  signed  and  sealed  it  was  acting  merely  as 
agent,^^  or  even  though  a  statement  of  his  agency  was 
appended  to  his  signature.^''     In  other  cases,  however, 

30a.     Huffcut,     Agency,     §     26;  35.     Taylor    v.    Agricultural    & 

Mechem,  Agency,   §   212.  Mechanical    Ass'n,    68    Ala.    229; 

31.  Tilton  V.  Cofield,  2  Colo.  Stinchfield  v.  Little,  1  Me.  231,  10 
392;  Watson  v.  Sherman,  84  111.  Am.  Dec.  65;  Elwell  v.  Shaw,  16 
263;  Montgomery  v.  Dorion,  6  N.  Mass.  42,  8  Am.  Dec.  126;  Stone 
H.  250;  Heath  v.  Nutter,  50  Me.  v.  Wood,  7  Cow.  (N.  Y.)  453,  17 
378;  Shuetze  v.  Bailey,  40  Mo.  69;  Am.  Dec.  529;  Bellas  v.  Hays,  5 
Blood  V.  Goodrich,  9  Wend.  (N.  Serg.  &  R.  427,  9  Am.  Dec.  385. 
Y.)  68,  24  Am.  Dec.  121;  Cadell  36.  Echols  v.  Cheney,  28  Cal. 
V.   Allen,    99    N.   C.    542.  157;  Morrison  v.  Bowman,  29  Cal. 

32.  1  Stimson's  Am.  St.  Law,  §  337;   Harper  v.  Hampton,  1  Harr. 
1670.  J.  622;   Brinley  v.  Mann,  2  Cush. 

33.  Ante,   §   461,  notes  53-58.  337,     48     Am.     Dec.     689;     Town- 

34.  HufEcut,   Agency    (2d    Ed.)  send    v.    Corning,   23    Wend.    442; 
§  188;  Mechem  Agency,  §  1093.  Farmers  v.  Respass,  5  T.  B.  Mon. 


§  464] 


Transfer  Inter  Vivos. 


1799 


such  strictness  of  view  is  not  adopted,  it  being  regarded 
as  sufficient  that  it  appears,  either  from  the  signature 
or  from  the  body  of  the  instrument,  that  it  is  intended 
to  be  the  deed,  not  of  the  agent,  but  of  the  principal,-"*^ 
and  in  some  states  there  is  a  statutory  provision  to  this 
general  effect.^  ^ 

The  question  whether  an  intention  appears  from 
the  face  of  the  instrument  that  it  shall  take  effect  as 
the  deed  of  the  principal  is,  in  its  nature,  a  question  of 
the  construction  of  the  language  used,  as  to  which  no 
absolute  rule  can  be  laid  down.^^  Such  an  intention 
does  not  ordinarily  appear  to  be  inferred  from  the  fact 
that  the  person  who  executes  the  instrument  is  de- 
scribed therein  as  the  agent  of  the  principal,  or  that 
he  professes  to  be  acting  under  authority  from  the 
latter,^^^  though  in  some  cases  this  appears  to  be  re- 
garded as  sufficient  for  the  purpose.^^    That  the  convey- 


(Ky.)  562;  Crawford  v.  Crawford, 
77  S.  C.  205. 

37.  Carter  v,  Chaudron,  21  Ala. 
72;  Magill  v.  Hinsdale,  6  Conn. 
464a;  Doe  d.  Tenant  v.  Roe,  27 
Ga.  418;  Avery  v.  Dougherty,  102 
Ind.  443,  2  N.  E.  123,  52  Am.  Rep. 
680;  Nobleboro  v.  Clark,  68  Me. 
87;  Herbert  v.  Pue,  72  Md.  307; 
Hutchins  v.  Byrnes,  9  Gray,  367; 
Murphy  v.  Welch,  128  Mass.  489; 
Bigelow  V.  Livingston,  28  Minn. 
57;  McClure  v.  Herring,  70  Mo. 
18;  Hubbard  v.  Swafford  etc.  Co., 
209  Mo.  495,  123  Am.  St.  Rep.  488, 
108  S.  W.  15;  Hale  v.  Woods,  10 
N.  H.  471;  Donovan  v.  Welch,  11 
N.  D.  113,  90  N.  W.  262;  Heffer- 
nan  v.  Addams,  7  Watts  (Pa.) 
116;  Rogers  v.  Bracken's  Adm'r, 
15  Tex.  564;  Shanks  v.  Lancaster, 
5  Gratt.  (Va.)  110,  50  Am.  Dec. 
108. 

38.  1  Stimson's  Am.  St.  Law,  § 
1675;  1  Mechem,  Agency,  §  1096, 
note  22. 


39.  See  Haven  v.  Adams,  4 
Allen  (Mass.)  80;  Nobleboro  v. 
Clark,  68  Maine  87. 

40.  Jones  V.  Morris,  61  Ala. 
518;  Sheridan  v.  Pease,  93  111. 
App.  219;  Fowler  v.  Shearer,  7 
Mass.  14;  First  Baptist  Church  of 
Sharon  v.  Harper,  191  Mass.  196, 
77  N.  E.  778;  Kiersted  v.  Orange 
&  A.  R.  Co.,  69  N.  Y.  343,  25  Am. 
Rep.  199;  Cadell  v.  Allen,  99  N. 
C.  542,  6  S.  E.  399;  Norris  v. 
Dains,  52  Ohio  St.  215,  39  N.  E. 
660,  49  Am.  St.  Rep.  716;  Quigley 
v.  De  Haas,  82  Pa.  St.  267;  North 
V.  Henneberry,  44  Wis.  306;  See 
Hill  V.  Conrad,  91  Tex.  341,  43  S. 
W.  789. 

41.  Donovan  v.  Welch,  11  N. 
Dak.  113,  90  N.  W.  262;  Avery  v. 
Dougherty,  102  Ind.  443,  2  N.  E. 
423,  52  Am.  Rep.  680;  Maglll  v. 
Hinsdale,  6  Conn.  464a,  16  Am. 
Dec.  70;  Hubbard  v.  Swafford  etc. 
Co..  209  Mo.  495,  123  Am.  St.  Rep. 
488. 


1800  Keal  Property.  [§  46-1 

aiice  is  made  by  the  agent  as  if  in  his  own  right,  without 
any  reference  to  the  fact  of  agency,  and  without  any 
mention  of  his  principal  by  name,  would  obviously  pre- 
clude the  conveyance  from  operating  to  divest  the  prin- 
cipal's rights.^ ^  That  the  instrument  is  signed  in  the 
name  of  A  the  principal  "by"  B  the  agent,  is,  it  seems, 
sufficient  to  make  the  instrument  effective  as  the  deed 
of  A,  although  it  reads  as  the  deed  of  B,^^  while  a  sig- 
nature B  "for"  A  would  be  sufficient  to  make  it  A's 
deed  if  the  instrument  itself  reads  as  the  deed  of  A, 
and  not  otherwise.^^ 

The  fact  that  the  name  of  the  principal  is  signed 
by  the  agent  without  any  addition  to  the  signature 
showing  that  the  signing  was  by  an  agent  has  been 
held  not  to  affect  the  validity  of  the  signature.^ ^  It  has 
been  suggested  that  it  must  appear  somewhere  upon 
the  face  of  the  instrument  that  it  was  executed,  not  by 
the  grantor,  but  by  an  agent  of  the  grantor,"*^  but 
it  may  be  questioned  whether  this  is  essential,  how- 
ever desirable. ^'^ 

A  conveyance  which  fails  at  law,  because  its  execu- 
tion is  by  the  agent  in  his  own  name,  instead  of  in  that 
of  his  principal,  will  be  sustained  in  equity  as  an  agree- 
ment to  convey,  and,  as  such,  will  be  effective,  not  only 

42.  Bassett  v.  Hawk,  114  Pa.  34  Am.  Dec.  176;  Cadell  v.  Allen, 
St.  502,  8  Atl.  18.  99  N.  C.  542,  6  S.  E.  399;  Donovan 

43.  See  Northwestern  Distill-  v.  Welch,  12  N.  D.  113;  Norris  v. 
ing  Co.  V.  Brant,  69  IH.  658,  18  Dains,— Ohio— 39  N.  E.  660,  49 
Am.  Rep.  631;  Shanks  v.  Lan-  Am.  St.  Rep  716;  McDaniels  v. 
caster,  5  Gratt.  (Va.)  110,  50  Am.  Flower  Brook  Mfg.  Co.,  22  Vt. 
Dec.  108;   McClure  v.  Herring,  70  274. 

Mo.  18,  35  Am.  Rep.  404.  45.     Forsyth  v.  Day,  41  Me.  382; 

44.  Smith  v.  Morse,  9  Wall.  (U.  Berkey  v.  Judd,  22  Minn.  287; 
S.)  76,  19  L.  Ed.  597;  Carter  v.  Devinney  v.  Reynolds,  1  Watts 
Chaudron,  21  Ala.  72;  Hancock  v.  &   S.    (Pa.)    328. 

Younker,    83    111.    208;     Hunter's  46.     Wood  v.  Goodridge,  6  Cush. 

Adm'rs   v.    Miller's   Adm'rs,    6    B.  (Mass.)    117,   52   Am.    Dec.    771. 
Mon.     (Ky.)     612;     Nobleboro    v.  47.     See     Forsyth     v.     Day,     41 

Clark,  68  Me.  87;  Mussey  v.  Scott,  Me.   382;    Hunter   v.  Giddings,   96 

7  Cush.   (Mass.)   215,  54  Am.  Dec.  Mass.  41,   93  Am.  Dec.  54. 
719;  Hale  v.  Woods,  10  N.  H.  470, 


§  46-4]  Transfer  Inter  Vivos.  1801 

between  the  parties,  but  as  against  subsequent  pur- 
chasers with  notice.^^ 

A  married  woman  has  power  to  transfer  her  rights 
in  land  only  in  the  mode  named  by  statute,  and  con- 
sequently, in  the  absence  of  express  statutory  authority, 
or  a  declaration  that  she  may  transfer  her  separate  es- 
tate as  if  she  were  sole,  she  cannot  execute  the  convey- 
ance by  an  agent  or  attorney,  and,  if  so  executed,  it  will, 
as  against  her,  be  void  both  at  law   and  in  equity."*^ 

The  validity  of  the  execution  of  a  conveyance  in 
behalf  of  a  corporation  by  an  officer  thereof  is  to  be 
determined  by  the  same  considerations  as  determine 
the  validity  of  a  conveyance  executed  by  any  other  agent 
of  the  intended  grantor.  The  instrument  should  prop- 
erly name  the  corporation  rather  than  the  officer  as  the 
gTantor,  and  should  be  signed  with  the  corporate  name 
and  sealed  with  the  corporate  seal.^*^  If,  however,  the 
fact  that  the  conveyance  is  intended  to  be  the  deed  of  the 
corporation  clearly  appears  from  the  language  of  the 
instrument,  the  fact  that  it  is  signed  in  the  name  of  the 
officer  does  not  aifect  its  validity  as  a  conveyance  by 
the  corporation.^^  And  in  such  case  the  seal  affixed  to 
the  signature,  though  a  mere  scroll,  will  be  presumed  to 

48.  Taylor  v.  Agricultural  &  Dentzel  v.  Waldie,  30  Cal.  138; 
Mechanical  Ass'n,  68  Ala.  229;  Wilkinson  v.  Getty,  13  Iowa,  157: 
Love  V.  Sierra  Nevada  Lake  Earle's  Adm'rs.  v.  Earle,  20  N. 
Water   &    Min.    Co.,    32    Cal.    639,  J.    L.    347. 

91     Am.     Dec.     602;     Robbins     v.  50.     See    Cook,    Corporations,    § 

Butler,     24     111.     387;     Wilkinson  722. 

V.    Getty,    13    Iowa,    157,    81    Am.  51.     Magill       v.       Hinsdale,       6 

Dec.    428;    McCaleb   v.    Pradat,   25  Conn.     464a,     16     Am.     Dec.     70; 

Miss.    257;    Kearney    v.    Vaughan,  Purinton   v.   Security  etc.   Co.,   72 

50  Mo.   284;    Ramage  v.   Ramage,  Me.  22;   Haven  v.  Adams,  4  Allen 

27    S.    C.    39,    2    S.    E.    834.    See  (Mass.)  80,  distinguishing  Brinley 

Stark  V.    Starr,   94    U.    S.    477,   24  v.    Mann,    2    Cush.    (Mass.)    337; 

L.  Ed.  276.  Sherman   v.    Fitch,    98    Mass.    59: 

49.  Randall  v.  Kreiger,  23  Tenney  v.  East  Warren  Lumber 
Wall.  (U.  S.)  137;  Mexia  v.  Co.,  4.T  N.  H.  343;  McDanlels  v. 
Oliver,  148  U.  S.  664;  Waddell  Flower  Brook  Mfg.  Co.,  22  Vt. 
V.   Weaver's  Adm'rs,   42   Ala.   293;  274. 

Holland    v.    Moon,    39    Ark.    120; 


1802  Keal  Pkoperty.  [§  464 

be  the  seal  of  the  corporation,  for  this  particular  occa- 
sion at  least.^^  Aiid  even  though  the  instrument  pur- 
ports to  be  merely  the  deed  of  the  officer,  the  fact  that  it 
is  signed  and  sealed  in  the  name  of  the  corporation  will, 
it  seems,  render  it  effective  as  the  deed  of  the  corpora- 
tion.^^ If  it  does  not  appear  from  the  language  of  the 
instrument  or  from  the  signature  that  it  is  the  deed  of 
the  corporation,  it  would  not  usually  be  regarded  as 
such,  even  though  the  officer  is  referred  to  by  his 
official  name.^^ 

Acknowledgment  by  agent.     An   acknowledg- 


ment may,  in  the  absence  of  an  express  statutory  pro- 
vision to  the  contrary,  be  made  by  the  agent  or  attorney 
in  fact  of  the  grantor.  The  cases  do  not  indicate  what 
formality  of  authorization  is  necessary,  but  there  would 
seem  to  be  little  question  that  the  same  formality  is 
necessary  to  enable  an  agent  to  acknowledge  as  to 
sign  or  seal  the  instrument,  that,  for  instance,  a  writ- 
ten power  of  attorney  is  necessary  for  the  one  purpose 
if  it  is  necessary  for  either  of  the  others.  An  authority 
in  terms  to  '^execute"  the  instrument  is  no  doubt  suffi- 
cient to  authorize  its  acknowledgment,^^  though,  strictly 
speaking,  an  acknowledgment  can  not  be  regarded  as 
a  part  of  the  execution,  except  in  jurisdictions  where  it 
is  necessary  in  order  to  transfer  the  title. 

The  certificate  of  acknowledgment  should  show 
that  the  agent  of  the  grantor  made  the  acknowledgment 
in  behalf  of  his  principal,  and  not  in  his  own  behalf,^^ 
but  the  courts  ordinarily  appear  disposed  to  disregard 

52.  See  cases  cited  Cook,  Cor-  Md.  376;  Bigelow  v.  Livingston, 
porations,  §  721,  1  Clark  &  28  Minn.  57,  9  N.  W.  31;  Rich- 
MarshaU,   Corporations,    §    192c.  mond  v.  Voorhees,  10  Wash.  316, 

53.  See    Northwestern    Distill-  38   Pac.   1014. 

ing  Co.   V.   Brant,   69    111.    658,   18  56.     Pfeiffer  v.   Cressey,   85   III. 

Am.    Rep.    631;    Shaffer   v.    Hahn,  App.   11;    Campbell  v.   Hough,   73 

11]    N.  Car.  1,  15  S.  E.  1033.  N.  J.  Eq.  601,  68  Atl.  759;   Peters 

54.  Ante,  this  section,  note  42.  v.    Condron,    2    Serg.    &   R.    (Pa.) 

55.  Robinson    v.    Mauldin,     11  80. 
Ala.   977;    Basshor  v.   Stewart,  54 


§  464] 


Transfer  Inter  Vr-os. 


1803 


any  such  requirement,  or  to  construe  the  language  used 
with  the  utmost  liberality  in  this  regard/^" 

The  mode  of  acknowledgment  on  behalf  of  a  cor- 
poration is  frequently  prescribed  by  statute.  In  the 
absence  of  any  statutory  designation  of  the  person 
who  is  to  make  the  acknowledgment  on  behalf  of 
the  corporation,  it  may  ordinarily  be  made  by  any 
officer  who  has  authority  to  affix  the  corporate  seal.^** 
The  certificate  should  show  that  the  officer  taking  the 
acknowledgment  was  satisfied  that  the  person  making 
the  acknowledgment  was  actually  the  corporate  officer 
which  he  purported  to  be,^»  and  that  he  acknowledged 
the  instrument  as  the  act  and  deed  of  the  corporation.**® 
But  a  recital  that  he  acknowledged  it  as  his  own  act 
and  deed  has  usually  been  regarded  as  sufficient,  it  be- 
ing inferrable  from  the  context  and  the  instrument  it- 
self that  the  acknowledgment  was  in  liehalf  of  the 
corporation."^ 


57.  Robinson  v.  Mauldin,  11 
Ala.  977;  Talbert  v.  Stewart,  39 
Cal.  602;  Sowden  v.  Craig,  26 
Iowa,  156,  96  Am.  Dec.  125; 
Munger  v.  Baldridge,  41  Kan. 
236,  13  Am.  St.  Rep.  273;  Bige- 
low  V.  Livingston,  28  Minn.  57, 
9  N.  W.  31;  McAdow  v.  Black, 
6  Mont.  601;  Moses  v.  Dibrell, 
2  Tex.  Civ.  App.  457,  21  S.  W. 
414;  Ferguson  v.  Ricketts, —  (Tex. 
Civ.  App.)— 57  S.  W.  19;  Rich- 
mond V.  Voorhees,  10  Wash.  316; 

58.  See  Gray  v.  Waldron,  101 
Mich.  612,  60  N.  W.  288;  Morris 
V.  Keil,  20  Minn.  531;  Bowers 
V.  Hechtman,  45  Minn.  238,  47 
N.  W.  792;  Hoopes  v.  Auburn 
Water  Works  Co.,  37  Hun.  (N. 
Y.)  568;  Sheehan  v.  Davis,  17 
Ohio  St.  571.  Compare  Johnson 
V.    Bush,    3    Barb.    Ch.    207. 

59.  Kelly  v.  Calhoun,  95  U.  S. 
710,    24    L.    Ed.    544;    Klemme    v. 


McLay,  68  Iowa,  158,  26  N.  W. 
533;  Bennett  v.  Knowles,  66  Minn. 
4,  68  N.  W.  Ill;  Hopper  v.  Love- 
joy,  47  N.  J.  Eq.  573,  12  L.  R.  A. 
588,  21  Atl.  298;  Withrell  v. 
Murphy,  154  N.  C.  82,  69  S.  E. 
748;  Holt  v.  Metropolitan  Trust 
Co.,  11  S.  D.  456,  78  N.  W.  947. 

60.  See  Chicago  First  Nat. 
Bank  v.  Baker,  62  111.  App.  154; 
Gessner  v.  Minneapolis  etc.  R. 
Co.,   15   N.    D.   560. 

61.  Copper  Belle  Min.  Co.  v. 
Costello,  11  Ariz.  334,  95  Pao. 
94;  Chicago  etc.  R.  Co,  v.  Lewis, 
53  Iowa,  101,  4  N.  W.  842;  Frost- 
burg  Mut.  Bldg.  Ass'n  v.  Brace, 
51  Md.  508;  Eppwright  v.  Nicker- 
son,  78  Mo.  482;  Descombes  v. 
Wood,  91  Mo.  196,  60  Am.  Rep. 
239;  Tenney  v.  East  Warren 
Lumber  Co.,  43  N.  H.  343;  Muller 
V.  Boone,  63  Tex.  91;  McDaniels 
V.  Flower  Brook  Mfg.  Co.,  22  Vt. 


1804  Real  Property.  [§  465 

§  465.    Effect  of  execution —  Return  or  cancellation. 

After  the  instrument  has  been  delivered,  and  the  title 
has  consequently  passed  to  the  grantee  named,  it  cannot, 
it  has  usually  been  held,  be  revested  in  the  grantor  by 
the  mere  physical  transfer  to  him  of  the  instrument,  or 
by  the  cancellation  of  the  instrument,  although  this  is  by 
agreement.  In  order  to  reconvey  to  his  grantor,  as  to 
any  other  person,  the  grantee  must  execute  a  conveyance 
to  him.^'^  In  a  few  states,  however,  the  view  has  been 
adopted  that  the  grantee  in  an  unrecorded  conveyance, 
after  returning  the  instrument  to  the  grantor,  with  the 
intention  of  revesting  the  title  in  him,  or  after  cancel- 
ling the  instrument  with  this  intention,  cannot  intro- 
duce secondary  evidence  of  the  instrument,  the  practical 
effect  of  this  being  to  divest  him  of  the  title  in  favor  of 
the  original  grantor.^^  And  in  other  jurisdictions  it  is 
recognized  that,  under  particular  circumstances,  the 
grantee  may,  by  reason  of  such  return  or  cancellation 
of  the  instrument,  be  estopped  to  assert  title  in  him- 

274;     Banner    v.    Rosser,    96    Va.  St.    550,    35    Atl.    214;     Wilke    v. 

238,  31  S.   E.   67.  Wilke,   28  Wis.  296;    Furguson  v. 

62.     Gimon    v.    Davis,    36    Ala.  Bond,    39    W.    Va.    561,    20    S.    E. 

589;    White    v.    Moffett,    108    Ark.  591;     Slaughter    v.    Bernards,    97 

490,    158    S.   W.    505;    Cranmer   v.  Wis.    184,    72    N.    W.    977;    Bolton 

Porter,    41    Cal.   462;    Weygant   v.  v.    Carlisle,    2    H.    Bl.    263;    Ward 

Bartlett,    102    Cal.    224,    36    Pac.  v.  ^  Lumley,     5     Hurlst.     N.     87. 

417;     Botsford    v.    Morehouse,     4  And   see   cases   cited   ante,    §    440 

Conn.     550;     Metropolitan     Trust  note  29. 

&  Sav.  Bk.  V.  Perry,  259  111.  183,  63.     Thompson  v.   Thompson,   9 

102    N.    E.    218;    Gibbs   v.    Potter,  ind.   323,   68  Am.   Dec.   638;    Far- 

166  Ind.  471,  77  N.  E.  942;   Hatch  rar  v.  Farrar,  4  N.  H.  191;   Mus- 

V.  Hatch,  9  Mass.  311,  6  Am.  Dec.  sey     v.     Holt,     24     N.     H.     248; 

67;     Tabor    v.    Tabor,    136    Mich.  Emery  v.  Dana,  76  N.  H.  48?|   84 

255,  99  N.  W.  4;   Green  v.  Hayes,  Atl.   976;    Gugins   v.   Van   Gorder, 

120    Minn.    201,    139    N.    W.    139;  10    Mich.    523,    Potter    v.    Adams, 

McAllister    v.    Mitchner,    68    Miss.  125  Mo.  118,  28  S.  W.  490;  Arring- 

672,  9   So.  829;    Potter  v.  Adams,  ton  v.   Arrington,   114   N.   C.   115, 

125  Mo.  118,  28  S.  W.  490;  Raynor  19   S.  E.   145;    Simpkins  v.  Wind- 

V.    Wilson,    6    Hill    (N.    Y.)    469;  sor,      21      Ore.      382,      (semhle); 

Parshall   v.    Shirts,    54   Barb.    (N.  Howard     v.     Huffman,     3     Head 

Y.)    99;    Jeffers  v.  Philo,   35  Ohio  (Tenn.)    562;    Wilke  v.  Wilke,   28 

St.  173;   Tate  v.  Clement,  176  Pa.  Wis.  296,  and  cases  cited  ante,   § 


§  465] 


Transfer  Inter  Vivos. 


1805 


self  .^^  111  one  or  two  states  the  return  of  the  instrument 
to  the  grantor,  or  its  destruction,  with  the  intention  of 
revesting  the  ownership  in  him,  has  been  regarded  as 
divesting  the  grantee  of  the  equitable  though  not  of 
the  legal  title,^^  and  in  two  states,  apparently,  of  the 
legal  title  as  well.*^*^  In  all  these  cases,  how^ever,  in 
which  the  return  or  cancellation  of  the  instrument  has 
been  regarded  as  effective,  directly  or  indirectly,  in 
favor  of  the  grantor,  the  instrument  was  at  the  time 
unrecorded,  and  the  return  or  cancellation  of  an  in- 
strument previously  recorded  would,  in  every  jurisdic- 
tion, presumably,  be  absolute  nugatory.^''' 


440,  note  34.  But  that  it  does 
not  so  operate  as  against  a  third 
person,  see  Thompson  v.  Thomp- 
son, 9  Ind.  323,  68  Am.  Dec.  638; 
Wilke  V.  Wilke,  28  Wis.  296. 
Compare  Pollock,  Contracts 
(Williston's   Edition)    p.    849. 

64.  Whisenant  v.  Gordon,  101 
Ala.  256,  13  So.  914  (semble) ; 
Brown  v.  Brown,  142  Iowa,  125, 
120  N.  W.  724;  Rowe  v.  Epling, 
163  Ky.  381,  173  S.  W.  801; 
Patterson  v.  Yeaton,  47  Me.  308; 
Comm.  V.  Dudley,  10  Mass.  403; 
Trull  V.  Skinner,  17  Pick. 
(Mass.)  213;  Howe  v.  Wilder, 
11  Gray  (Mass.)  267;  McAllister 
V.  Mitchner,  68  Miss.  672,  9  So. 
829;  Dukes  v.  Spangler,  35  Ohio 
St.  119;  Stanley  v.  Epperson,  45 
Tex.    645. 

65.  Reavis  v.  Reavis,  50  Ala. 
60;  Sanford  v.  Finkle,  112  111. 
146;  Happ  v.  Happ,  156  111.  183, 
41  N.  E.  39;  Cossman  v.  Keister, 
223  111.  69,  8  L.  R.  A.  (N.  S.)  698, 
114  Am.  St.  Rep.  305,  79  N.  E.  58; 
Matheson  v.  Matheson,  139  Iowa, 
511,  18  L.  R.  A.  (N.  S.)  1167,  117 
N.    W.    755;    Russell   v.    Meyer,    7 


N.  D.  335,  75  N.  W.  262.  A  like 
view  was  applied  when  the  instru- 
ment was  not  returned  or  can- 
celled, but,  having  been  lost,  it 
was  regarded  by  the  parties  as 
having  been  returned  and  cancell- 
ed. Hays  V.  Dean, — Iowa, — 164  N. 
W.    770. 

66.  Huffman  v.  Huffman,  1 
Lea  (Tenn.)  491;  Peterson  v. 
Carson,— (Tenn.)— 48  S.  W.  383; 
Respass  v.  Jones,  102  N.  Car.  5, 
8  S.  E.  770. 

The  making  of  a  second  con- 
vej^ance  of  the  same  property,  by 
the  same  grantor  to  the  same 
grantee,  but  excepting  a  part  of 
that  previously  conveyed,  has 
been  held  to  render  the  first 
conveyance  nugatory.  Wardman 
V.  Harper,  156  Iowa,  453,  136 
N.  W.  893;  Hall  v.  Wright.  137 
Ky.   39,   127    S.    W.    16. 

67.  See  Pollock,  Contracts. 
(Williston's  Ed.)  850;  Thomp- 
son V.  Thompson,  9  Ind.  323,  68 
Am.  Dec.  6.38;  Rifeiner  v.  Bow- 
man, 53  Pa.  St.  313;  Wheeler  v. 
Single.  62  Wi.s.  380,  22  N.  W. 
569. 


2  R.  P. 


CHAPTER  XX 

TRANSFER  BY  WILL. 

§  466.  General   considerations. 

467.  Will   and  conveyance  distinguished. 

468.  Signing  by  testator. 

469.  Acknowledgment  and  publication. 

470.  Competency  of  witnesses. 

471.  Attestation   and  subscription. 

472.  Holographic  and   nuncupative  wills. 

473.  Undue  influence. 

474.  Lapsed  and  void  devises. 

475.  The  revocation  of  a  will. 

476.  Children  or  issue  omitted  from  will, 

477.  Revival  of  will. 

478.  Republication. 

§  466.  General  considerations.  While,  before  the 
Norman  Conquest,  and  for  a  century  thereafter,  per- 
sons were  allowed  to  make  post  obit  gifts  of  land,  to 
take  effect  in  possession  after  the  death  of  the  donor, 
the  rule  was  established  by  the  king's  court,  late  in  the 
twelfth  century,  in  favor  of  the  heir,  that  a  transfer  of 
a  freehold  interest  in  land,  though  to  take  effect  only 
after  the  death  of  the  transferor,  must  be  by  livery  of 
seisin,  and  so  any  transfer  of  such  an  interest,  answer- 
ing to  our  modern  will  or  devise,  became  impossible,  ex- 
cept in  the  case  of  certain  lands  devisable  by  local 
custom.^  Eventually  the  invention  of  uses  enabled  one 
to  devise  his  land  by  making  a  feoffment  to  uses  to  be 
declared  by  his  last  will,  in  which  case  chancery  would 
enforce  the  use  so  declared.^  The  power  of  thus  making 
a  will  by  the  declaration  of  a  use  was,  however,  put  an 
end  to  by  the  Statute  of  Uses,  this  being  in  fact  one  of 

1.  2  Pollock  &  Maitland,  Hist.       (5th    Ed.)     64;     Williams,    Real 
Eng.  Law,  324-329.  Prop.  (21st  Ed.)  168.    See  ante,  § 

2.  1    Sanders,    Uses    &    Trusts      96. 

(1806) 


§  466]  Transfer  by  Will.  1807 

tlie  purposes  of  its  passage,  as  recited  in  the  preamble. 
But  the  inconvenience  of  this  prohibition  of  testamen- 
tary disposition  was  so  greatly  felt  that,  five  years 
later,  the  Statute  of  Wills^  was  passed,  by  which  statute 
tenants  in  fee  simple  were  empowered  to  dispose  by  will 
of  all  their  lands  held  in  socage  tenure,  and  two-thirds 
of  those  held  by  knight  service,  and,  after  the  change  of 
all  tenures  into  socage  tenures,*  all  lands  came  within 
the  operation  of  this  statute,  and  were  devisable. '^ 

A  will  of  real  property  was  in  early  times,  and 
likewise  after  the  Statute  of  Wills,  regarded  as  a  species 
of  conveyance,  to  take  effect  at  a  future  time,  that  is, 
on  the  death  of  the  testator.**  This  theory  had  important 
results  upon  the  law  of  wills  of  real  property,  as  dis- 
tinct from  wills  of  personalty.  One  most  important 
result  of  this  theory  was  that,  since  one  could  convey 
only  such  land  as  he  owned,  a  will  could  operate  u]ion 
such  real  property  only  as  the  testator  owned  at  the 
time  of  making  the  will.''  And  for  this  reason,  if  one, 
after  having  made  a  will,  aliened  property  covered  by 
the  will,  such  property  did  not  pass  under  the  will, 
even  though  he  subsequently  reacquired  it,^ 

The  rule  that  after-acquired  real  property  does 
not  pass  under  a  will  has  been  changed  by  statute  in 
most,  if  not  all,  jurisdictions.  In  England  the  Wills 
Act  ^  provided  that  a  testator  might  dispose  of  all  real 
and  personal  estate  to  which  he  might  be  entitled  at  the 
time  of  his  death,  and  that  every  will  should,  in  the 
absence  of  indications  of  a  contrary  intention,  be  con- 
strued to  take  effect,  with  reference  to  the  real  and 
personal  estate  comprised  in  it,  as  if  executed  imme- 
diately before  the  death  of  testator.    The  effect  of  these 

3.  32    Hen.    VIII.    c.    1    (A.    D.  7.     Harwood     v.     Goodright.     1 
1540).  Cowp.  87;    Brydges  v.  Chandos.  2 

4.  An,te,   §   12.  Ves.  Jr.  417,  427;    Williams,  Real 

5.  Digby,  Hist.  Real  Prop.  c.  8.  Prop.  250. 

6.  Pollock    &    Maitland,    Hist.  8.     Post,  §   475. 

Eng.    Law,    313;     Williams,    Real  9.     7    Wm.    IV.    and    1    VUt.    c. 

Prop.    (21st    Ed.)    250.  20  §§   3,  24   (A.  D.  18:57). 


1808  Eeal  Property.  [^  466 

provisions  is  that  a  gift  in  general  terms,  such  as  ''all 
my  real  estate,"  or  "all  my  property,"  or  "all  my 
land,"  passes  after-acquired  interests,  unless  a  contrary 
intention  appears,  and  that  a  "residuary  devise,"  that 
is,  a  devise  of  all  one's  proj)erty  not  otherwise  disposed 
of,  has  the  same  effect.^" 

In  some  of  the  states  there  are  statutes  substantially 
similar  to  those  in  England,^^  and  having  a  similar  op- 
eration.^- In  other  states  the  statute  provides  that 
after-acquired  real  property  shall  pass  by  the  wiU  only 
when  it  appears  from  the  will  that  such  was  the  testa- 
tor's intention. ^^ 

Another  effect  of  the  theory  that  a  devise  was  a 
conversance  was  that  a  residuary  devise  was  regarded  as 
a  specific  devise  of  such  land  as  the  testator  owned  at 
the  time  of  making  the  mil,  and  did  not  othermse  dis- 
pose of  therein,  a  matter  which  will  be  considered  here- 
after more  particularly  in  connection  with  "lapsed  and 
void  devises."^* 

A  further  result  of  the  theory  that  a  disposition  of 
real  property  by  Avill  was  in  effect  a  conveyance  ap- 
peared in  the  fact  that  a  devise  of  real  property,  unlike 
a  legacy  of  personalty,  was  regarded  as  passing  the  land 
directly  to  the  devisee,  without  the  intervention  of  the 
executor  or  administrator.  This  rule  still  prevails  in 
the  majority  of  jurisdictions,  though  it  has  been  changed 
by  recent  statutes  in  England  and  some  states.^' 

The  king's  courts,  in  the  twelfth  century,  having  es- 
tablished the  principle  that  there  could  be  no  testamen- 

10.  1   Jarman,   Wills,   291,   612.  Briggs,    69    Iowa,    617,    29    N.    W. 

11.  1  Stimson's  Am.  St.  Law,  632;  Paine  v.  Forsaith,  84  Me.  66, 
§§  2806,  2809.  24  Atl.  590;   Woman's  Union  Mis- 

12.  See  Webb  v.  Archibald,  128  sionary  Soc.  of  America  v.  Mead. 
Mo.  299,  34  S.  W.  54;  Jacobs'  Es-  131  111.  33,  23  N.  E.  603;  Kimball 
tate,  140  Pa.  St.  268,  11  L.  R.  A.  v.  Ellison,  128  Mass.  41. 

767,  23  Am.  St.  Rep.  230,  21  Atl.  14.     See  iwst,  §  474. 

318.  15.     2  Woerner,  Administration, 

13.  1  Stimson's  Am.  St.  Law,  §  §  337;  11  Am.  &  Eng.  Enc.  Law 
2809    (C).  See  Church  v.  Warren  (2d  Ed.)    1037  et  seq. 

Mfg.  Co.,  14  R.  I.  539;    Briggs  v. 


"^  467]  Transfee  by  Will.  1809 

tary  gift  of  land,  relinquished  the  jurisdiction  of  the 
personal  property  of  decedents  to  the  ecclesiastical 
courts,  and  thereafter  the  law  of  succession  to  personal 
property,  including  chattels  real,  was  developed  by  these 
latter  courts. ^^  As  a  result,  the  civil-law  conception  of 
a  will,  not  as  a  conversance,  but  as  a  secret  and  revoca- 
ble instrument,  which  was  to  take  effect  at  the  death 
of  testator  only,  has  always  been  applied  in  the  case  of 
personalty  ;^'^  and  likewise  the  position  of  an  executor 
or  administrator  as  the  personal  representative  of  the 
deceased,  to  whom  all  his  personal  property  passes  on 
his  death,  including  that  disposed  of  by  will,  became 
established  at  an  early  date.^^ 

§  467.  Will  and  conveyance  distinguished.  The 
question  frequently  arises  whether  a  particular  instru- 
ment is  to  be  regarded  as  a  conveyance  inter  vivos  or 
as  an  instrument  of  a  testamentary  character,  that  is, 
a  will.  The  distinction  would  seem  to  be  clear,  liowever 
difficult  of  application.  If  the  instrument  is  intended  to 
be  immediately  operative,  it  cannot  be  regarded  as  a 
will,  and  conversely,  if  it  is  intended  to  be  operative  only 
upon  the  death  of  the  maker,  it  cannot  be  regarded  as  a 
conveyance  inter  vivos.'^^     The  question  is,  in  the  last 

16.  2  Pollock  &  Maltland,  Hist.  144;  Sapplngford  v.  King,  49  Ore. 
Eng.  Law,  329,  331.  102,  8  L.  R.  A.  N.  S.  1006,  89  Pac. 

17.  Holds-worth  &  Vickers,  Lav/  142,  90  Pac.  150;  Trumbauer  v. 
of  Succession,  31;  Maine,  Anc.  Rust,  36  S.  D.  301,  154  N.  W.  801; 
Law  (4th  Ed.)  173  et  seg.;  Har-  In  re  Edwall's  Estate,  75  Wash, 
wood  V.  Goodright,  Cowp.  87.  391,  134  Pac.  1041;  and  cases  cited 

18.  2  Pollock  &  Maitland,  Hist.  in  note  to  Phillips  v.  Phillips, 
Eng.  Law,  334,  345;  Digby,  Hist.  A.  &  E.  Ann.  Gas.  1916D,  996)  is 
Real  Prep.    (5th  Ed.)    380.  in  a  sense  correct,  but  it  is  open 

19.  The  statement  frequently  to  criticism  as  suggesting  that 
made  that  whether  an  instrument  the  distinction  depends  on  the 
is  a  deed  or  a  will  depends  upon  character  of  the  interest  which 
whether  it  passes  a  "present  in-  passes  rather  than  on  the  time 
terest  (See  e.  g.  Ransom  v.  at  which  it  is  to  pass.  Until  the 
Pottawattamie  County,  168  Iowa,  testator's  death,  nothing  passes  by 
570,    150    N.    W.    G57;     Glover    v.  a    will. 

Fillmore,    88    Kan.    545,    129    Pac. 


1810  Real  Peoperty.  [§467 

analysis,  merely  whether  the  maker  of  the  instrument 
intended,  by  its  execution,  immediately  to  transfer  an 
interest  to  another,  or  whether  he  intended  merely  to 
declare  in  whom  an  interest  should  vest  upon  his  death, 
in  case  he  did  not  subsequently  indicate  a  different  in- 
tention. The  difficulty  in  the  practical  application  of 
the  distinction  lies  in  the  difficulty  of  ascertaining  the 
intention  of  the  maker  of  the  instrument  in  this  regard. 
That  no  estate  in  favor  of  the  person  named  is  to  com- 
mence until  the  death  of  the  maker  of  the  instrument 
does  not  show  that  the  instrument  is  testamentary  in 
character,-''  since  an  estate  to  commence  at  his  death 
can,  as  previously  stated,-^  be  created  by  a  conveyance 
inter  vivos.  And  the  fact  that  the  maker  expressly 
reserves  a  life  estate,^^  or  the  possession  and  control 
of  the  property  during  his  life,^^  is  perfectly  compatible 
with  the  operation  of  the  instrument  as  a  conveyance 
inter  vivos.  Nor  is  the  instrument  necessarily  a  will 
because  the  beneficiary  named  has  merely  a  possibility, 
and  no  assured  prospect,  of  an  estate,  to  commence  upon 
the  testator's  death.  For  instance  a  conveyance  may 
be  made  inter  vivos  of  a  life   estate  to  commence   in 

20.  West  V.  Wright,  115  Ga.  St,  Rep.  334,  59  Pac.  1059;  Deck- 
277,  41  S.  E.  602;  Kytle  v.  Kytle,  enbach  v.  Deckenbach,  65  Ore.  160, 
128  Ga.  387,  57  S.  E.  748;  Bowler  130  Pac.  729;  Muntz  v.  Whitcomb, 
V.   Bowler,   176   111.   541,   52   N.  E.  40   Pa.   Super  Ct.   553. 

4.37;   Love  v.  Blauw,  61  Kan.  496,  23.     Adair    v.    Craig,    135    Ala. 

48    L.    R.    A.    257,    59    Pac.    1059;  332,     33     So.     902;      Guthrie     v. 

O'Day   V.   Meadows,   194    Mo.    588,  Guthrie,  105  Ga.  86,  31  S.  E.  40; 

112   Am.    St.   Rep.    542,    92   S.   W.  Spencer  v.  Razor,  251  111.  278,  96 

637;  Fellbush  v.  Fellbush,  216  Pa.  N.    E.    300;    Tansel   v.    Smith,    49 

141,    65    Atl.    28.  Ind.  App.  263,  93  N.  E.  548,  94  N. 

21.  Ante,   §   159.  E.  890;   Saunders  v.  Saunders,  115 

22.  Mays  v.  Burleson,  180  Ala.  Iowa,  275,  88  N.  W.  329;  Dozier 
396,  61  So.  75;  Sharpe  v.  Mat-  v.  Toalson,  180  Mo.  546,  102  Am. 
thews,  123  Ga.  794,  51  S.  E.  706;  St.  Rep.  586,  79  S.  W.  420;  Ran- 
Timmons  v.  Timmons,  49  Ind.  ken  v.  Donovan,  166  N.  Y.  626,  60 
App.  21,  96  N.  E.  622;  Lefebure  N.  E.  119;  Cook  v.  Cooper,  59  S. 
V.  Lefebure,  143  Iowa,  293,  121  C.  560.  38  S.  E.  218;  Jones  v 
N.  W.  1025;  Love  v.  Blauw,  61  Caird,  153  Wis.  384,  141  N.  W. 
Kan.  496,  48  L.  R.  A.  257,  78  Am.  228. 


§  467]  Transfer  by  Will.  1811 

interest  upon  the  grantor's  death,  in  which  case  the 
beneficiary  has,  previous  to  the  grantor's  death,  merely 
a  possibility  of  an  estate,  dependent  on  his  survival  of 
the  grantor.2^  And  one  may,  by  a  conveyance  inter 
vivos,  limit  an  estate  to  conmience  on  the  death  of  the 
maker  of  the  instrument  provided  a  particular  con- 
tingency occurs,  provided,  for  instance  the  transferee 
named  survives  the  maker.^^  In  such  a  case  the  gi-antee 
would  have  merely  a  possibility  of  an  estate,  but  the 
possibility  becomes  his  immediately  upon  the  delivery 
of  the  conveyance,  and  he  cannot  be  deprived  of  the 
possibility  by  any  act  on  the  part  of  the  maker. 

While  a  will  is  in  its  nature  revocable  and  a  convey- 
ance inter  vivos  is  in  its  nature  not  revocable,  the  fact 
that  the  instrument  contains  an  express  power  of  revoca- 
tion does  not  show  it  to  be  a  will.-*^  The  right  to  revoke  a 
will,  which  is  based  on  the  fact  that  the  will  does  not  be- 
come operative  until  the  testator's  death,  is  in  effect  a 
right  to  render  the  instrument  absolutely  nugatory,  while 
an  express  powder  of  revocation  contained  in  a  convey- 
ance inter  vivos  does  not  involve  a  right  to  render  the  in- 
strument absolutely  nugatory,  but  merely  empowers  the 
grantor  to  divest  an  estate  or  interest  which  is  created 
by  the  conveyance.  Occasionally,  language  is  used  by 
the  courts  suggesting  that  the  absence  of  an  express 
power  of  revocation  tends  to  show  that  the  instrument 

24.  See  e.  g.  Lindemann  v.  as  deciding  the  contrary,  they 
Dobossy,  — (Tex.  Civ.  App.) —  107  cannot,  it  is  submitted,  be  up- 
S.    W.     Ill;     West    v.    West,  155      held. 

Mass.    317,    29    N.    E.    582.  26.     Mays  v.  Burleson,  180  Ala. 

25.  See  e.  g.,  Thomas  v.  Wil-  396,  61  So.  75;  Cribbs  v.  Walker, 
Hams,  105  Minn.  88,  117  N.  74  Ark.  104,  85  S.  W.  244; 
W.  155;  Phifer  v.  Mullis,  167  Tennant  v.  John  Tennant  Mem- 
N.  C.  405,  83  S.  E.  582.  If  orial,  167  Cal.  570,  140  Pac.  212; 
Kenney  v.  Parks,  125  Cal.  146,  57  Brady  v.  Fuller,  78  Kan.  448,  96 
Pac.  772;  Dunlap  v.  Marnell,  95  Pac.  854;  Wall  v.  Wall,  30  Miss. 
Neb.  535,  145  N.  W.  1017;  In  re  91,  64  Am.  Dec.  147;  Stamper  v. 
EdwaH's  Estate,  75  Wash.  391,  Venable,  117  Tenn.  557,  97  S.  W. 
134  Pac.  1041,  are  to  be  regarded  812;    1  Jarman,  Wills,  22. 


1812  Real  Peopekty.  [§  467 

was  intended  as  a  conveyance  inter  vivos^'^  but  the  prop- 
erty of  such  an  inference  seems  most  questionable.  The 
absence  of  an  express  power  of  revocation  might  quite 
as  well  be  regarded  as  tending  to  show  that  the  in- 
strument was  intended  as  a  will,  since  a  will  is  always 
I'e vocable,  and  there  is  no  possible  object  in  inserting 
sucli  an  express  power  therein. 

That  an  instrument  has  been  expressly  delivered 
as  a  conveyance  would  seem  to  be  conclusive  that 
it  is  not  intended  to  operate  as  a  will,  unless  it  is 
susceptible  of  division  into  two  instruments,  one  a 
will  and  the  other  a  conveyance.  Usually,  however, 
even  though  the  circumstances  are  such  as  to  create 
a  presumption  of  delivery,  so  as  to  validate  the  in- 
strument if  regarded  as  a  conveyance,  they  are  not 
such  as  to  show  conclusively  that  the  instrument  was 
intended  to  operate  as  a  conveyance.  If,  for  instance, 
the  maker  hands  the  instrument  to  the  transferee 
named,  though  this  creates  a  presumption  of  delivery 
in  case  the  instrument  is  to  be  regarded  as  a  convey- 
ance,^^ and  may  tend  to  show  that  the  instrument  was 
intended  as  a  conveyance,-^  it  is  perfectly  possible  that 
the  instrument  was  put  in  such  transferee's  care  as  a 
will,  and  that  it  was  not  intended  to  operate  as  a  con- 
veyance.'*" On  the  other  hand,  the  fact  that  there  is 
no  evidence  of  delivery  of  the  instriunent,  such  as  is 
necessary  to  support  it  as  a  conveyance  inter  vivos,  that 

27.  See  e.  g.  Abney  v.  Moore,  coll,  143  Cal.  528,  77  Pac.  471; 
106  Ala.  131,  18  So.  60;  Harper  Youngblood  v.  Youngblood,  74  Ga. 
V.  Reaves,  132  Ala.  625,  32  So.  614;  Hathaway  v.  Cook,  258  111. 
721;  Stroup  v.  Stroup,  140  Ind.  92,  101  N.  E.  227;  Fellbush  v. 
179,  27  L.  R.  A.  523,  39  N.  B.  Fellbush,  216  Pa.  141,  65  Atl. 
864;  Lacy  v.  Comstock,  39  Kan.  28;  Billings  v.  Warren,  21  Tex. 
86,  39  Pac.  1024;  Kelleher  v.  Civ.  App.  77,  50  S.  W.  625. 
Kernan,  60  Md.  440;  Ellis  v.  30.  See  Fellbush  v.  Fellbush, 
Pearson,  104  Tenn.  591,  58  S.  216  Pa.  141,  65  Atl.  28;  Griffin 
W.    318.  V.    Mcintosh,    176    Mo.    392,    75    S 

28.  Ante,   §    463,  note  67.  W.    677;    Tewkesbury    v.    Tewkes- 

29.  AUney   v.    Moore,    106    Ala.  bury,    222    Mass.    595,    111    N.    E. 
131,   18   So.   60;    DriscoII   v.   Dris-  394. 


§  467]  Teansfkr  by  Will.  1813 

is,  no  evidence  of  an  expression,  by  word  or  act',  of  an 
intention  that  it  shall  operate  as  such,  won  Id  seem  to 
afford  some  room  for  an  inference  that  it  was  intended 
to  operate  only  at  the  maker's  death,^^  though  an  in- 
strument which  is  in  form  clearly  a  conveyance  inter 
vivos  cannot,  it  would  seem  evident,  be  regarded  as  a 
will  merely  because  it  has  not  been  delivered  as  a  con- 
veyance."^  In  so  far  as  a  lack  of  delivery  can  be 
inferred  from  the  maker's  retention  of  possession  of  the 
instrunient,^'^  and  in  so  far  as  testamentary  intention  can 
be  inferred  from  a  lack  of  delivery ,^^  such  intention  can 
be  inferred  from  the  retention  of  possession.  But  the 
retention  of  possession  is  not  conclusive  of  a  lack  of 
delivery,^^  and  it  is  certainly  not  conclusive  of  an  in- 
tention that  the  instrument  shall  operate  as  a  will 
rather  than  as  a  conveyance. 

The  fact  that  an  instrument  of  doubtful  character 
is  invalid  if  regarded  as  a  conveyance  while  valid  if 
regarded  as  a  will,  has  been  referred  to  as  a  ground 
for  regarding  it  as  a  ^^all,'*^  and  conversely,  the  fact 
that  an  instrument  is  invalid  if  regarded  as  a  will  while 
valid  if  regarded  as  a  conveyance  has  been  considered 
a  ground  for  regarding  it  as  a  conveyance.''^  This  view 
is  based  partly  upon  the  policy  of  the  courts  to  give 

31.  Sharp  v.  HaH,  86  Ala.  110,  35.     Ante,   §    461,   uole  43. 

11     Am.     St.     Rep.     28;     Rice    v.  36.     Heaston  v.  Kreig,  167  Ind. 

Carey,     170     Cal.     748,     151     Pac.  101,  119  Am.   St.  Rep.  475,  77   N. 

135;    Nichols  v.   Chandler,   55  Ga.  E.   805;    Symes  v.  Arnold,  10  Ggi. 

369;    Nichols  v.  Huddleson,  13  B'.  506;    Sharp   v.   Hall,   86   Ala.    110. 

Men.      (Ky.)      299;      Bromley     v.  11   Am.    St.    Rep.    28;    Trumbauer 

Mitchell,    155    Mass.    509,    30    N.  v.  Rust,  36  S.  D.  301.   154  N.  W. 

E.     83;     Edwards     v.     Smith,     35  801;    1    Jarman,    Wills,    22.      And 

Miss.  197;   Miller  v.  Holt,  68  Mo.  see  ante,  this  section,  note  31. 
584;    Kresecker's   Estate,    170   Pa.  37.     Jacoby   v.    Nichols,    23    Ky. 

St.    476;     RouDtree    v.    Rountree,  L.     Rep.     205,     62     S.     W.     734; 

85  S.  C.  383,  67  S.  E.  471.  Thomas    v.    Williams,    105    Minn. 

32.  See    Dexter    v.    Witte,    138  88,     117    N.    W.     155;     Abney    v. 
Wis.  74,  119  N.  W.  891.  Moore,    106    Ala.    131,    18    So.    60; 

33.  Ante,    §    4G1,    note    62.  Wynn   v.   Wynn,   112   Ga.   214,   37 

34.  Ante,  this  section,  note  31.  S.   E.   378. 


1814  Kbal  Propeety.  [§  467 

to  an  instrument  a  legal  operation  wherever  possible, 
and  partly  upon  the  consideration  that  the  maker  of  the 
instrument  must  have  intended  it  to  operate  in  the 
mode  in  which  he  rendered  it  capable  of  operating. 
The  fact,  however,  that  an  instrument  which  is  clearly 
intended  to  operate  as  a  will  is  not  executed  with  the 
formalities  required  in  the  case  of  a  will  is  not  sufficient, 
it  would  seem,  to  give  it  validity  as  a  conveyance  inter 
vivos,  but  it  is  totally  inoperative."^  The  maker's  in- 
tention that  the  instrument  shall  not  be  operative  until 
his  death  excludes  an  intention  that  it  shall  be  im- 
mediately operative,  which  latter  intention  is  necessary 
to  constitute  delivery.^^  With  this  intention  lacking,  the 
fact  that  the  maker  hands  the  instrument  to  the  trans- 
feree named  therein  could  not  make  the  instrument 
effective  as  a  conveyance  inter  vivos.'*'^ 

That  an  instrument  otherwise  in  the  form  of  a 
conveyance  inter  vivos  contains  a  clause  to  the  effect 
that  it  is  not  to  take  effect  until  the  maker's  death  has 
in  some  cases  been  regarded  as  showing  a  testamentary 
intent,^  ^  while  in  others  this  has  been  regarded  as  not 
inconsistent  with  the  operation  of  the  instrument  as  a 
conveyance  imter  vivos,  and  as  merely  postponing  the 

38.  See  Murray  v.  Cazier,  23  102,  8  L.  R.  A.  (N.  S.)  1066,  89 
Ind.  App.  600,  53  N.  E.  476;  Pac.  142,  90  Pac.  150;  Turner 
Priester  v.  Hohloch,  70  N.  Y.  v.  Scott,  51  Pa.  26;  Coulter  v. 
App.  Div.  256,  75  N.  Y.  Supp.  Shelmadine,  204  Pa.  120,  53  Atl. 
405;  Tuttle  v.  Raish,  116  Iowa,  638;  Fellbush  v.  Fellbush,  216 
331,    90    N.     W.     66;     Larson    v.  Pa.    141,    65    Atl.    28. 

Lund,   109   Minn.   372,    123   N.   W.  41.     Seay  v.  Huggins,    194   Ala. 

1070.  496,    70    So.    113;    Donald  v.   Nes- 

39.  Ante,    §    461,    notes    40-47.  bit,    89    Ga.    290,    15    S.    E.    367; 

40.  See  Griffin  v.  Mclntosli,  176  Ransom  v.  Pottawattamie  Coun- 
Mo.  392,  75  S.  W.  677.  And  see  ty,  168  Iowa,  570,  150  N.  W. 
cases  cited,  ante,  §  461,  note  47;  657;  In  re  Bybee's  Estate,  179 
Murphy  v.  Gabbert,  166  Mo.  596,  Iowa,  1089,  160  N.  W.  900; 
89  Am.  St.  Rep.  733,  66  S.  W.  Leonard  v.  Leonard,  145  Mich. 
536;  Terry  v.  Glover,  235  Mo.  563,  108  N.  W.  985;  Moody  v. 
544,  139  S.  W.  3S7;  Pinkham  v.  Macomber,  159  Mich.  C57,  124 
Pinkham,  55  Neb.  729,  76  N.  W.  N.  W.  549;  Simpson  v.  Mc- 
411;    Sappingfield  v.  King,  49  Ore.  Gee,    112    Miss.    344,    73    So.    55. 


§  467]  Teansfer  by  Will.  1815 

transferee's  right  of  enjoyment.'' ^  Such  language  would 
seem,  prima  facie,  to  indicate  a  testamentary  intention, 
but  when  read  in  connection  with  the  context  and  the 
surrounding  circumstances,  it  may  no  doubt  be  suscep- 
tible of  a  different  construction.  The  decisions  which 
regard  such  a  clause  as  merely  postiDoning  the  right  of 
enjoyment  are  to  a  considerable  extent,  it  appears, 
based  on  the  consideration  that  otherwise  the  instrument 
would  be  a  nullity  because  not  executed  as  a  will.  It 
does  not  seem  that  any  absolute  rule  that  such  a 
clause  shows,  or  that  it  does  not  show,  a  testamentary 
intention,  should  properly  be  aserted,  it  being  a  ques- 
tion merely  of  the  construction  of  the  language  used. 
One  may,  of  he  chooses,  by  conveyance  inter  vivos, 
create  in  another  an  estate  to  commence  upon  his,  the 
grantor's,  death,^2a  ^^^  ^^^  j^^^  ^^^^  -^^  ^j^^  particular 

instrument  he  indicates  an  intention  to  create  such  an 
estate  is  certainly  not  conclusive  that  the  instrument 
is  a  will  and  not  a  conveyance. 

That  an  instrument  undertakes  to  dispose  only  of 
such  property  as  the  maker  may  have  at  the  time  of 
his  death  has  been  regarded  as  strong,  if  not  conclusive, 
evidence  of  an  intention  that  the  instrument  shall  op- 
erate as  a  will  and  not  as  a  conveyance.^^ 

42.     Abney   v.    Moore,    106    Ala.  Hunt,    119    Ky.    39,    68    L.    R.    A. 

131,     18     So.     60;        Phillips     v.  180,    82    S.    W.    998;      Abbott    v. 

Phillips,     186    Ala.     545,     65     So.  Holway,    72    Me.    298;     Vessey    v. 

89;      Burch     v.     Nicks,     50     Ark.  Dwyer,    133    N.    W.    613;     Rogers 

367,     7     S.     W.     563;      West     v.  v.    Rogers     (Miss.)     43    So.    946; 

Wright,    115    Ga.    277,    41    S.    E.  Wimpey    v.    Ledford      (Mo.)     177 

602;       Griffith     v.     Douglas,     120  S.   W.    302;     Merck   v.   Merck,    83 

Ga.    582,    48    S.    E.    129;     Harsh-  S.    C.   329,    65    S.    E.   347;     Truni- 

barger    v.    Carroll,    163    111.    636,  bauer  v.  Rust,   36   S.   D.   301,   154 

45     N.     E.     565;       Hathaway     v.  N.     W.     801;      Garrison     v.     Mc- 

Cook,  258   ni.  92,   101  N.  E.  227;  Lain.     (Tex.    Civ.    App.)     112    S. 

Kelly    V.    Shimer,    152    Ind.    290,  W.   773;     Lauck  v.   Logan,   45  W. 

53    N.    E.    233;      Rust    v.    Ruth-  Va.  25,  31   S.  E.  986. 

erford,     95     Kan.     152,     147     Pac.  42a.     Ante,    §    159. 

805;       Phillips     v.     Lumber     Co.,  43,     Nichols  v.  Nichols,  108  Cal. 

94     Ky.     445,     42     Am.     St.     Rep.  444,    143    Pac.    712;     Robinson    v. 

367,     22     S.     W.     652;      Hunt     v.  Schley,    6    Ga.    515;      Brewer    v. 


1816 


Keal  Property. 


[§  467 


That  an  instrument,  in  form  a  conveyance  inter 
vivos,  is  handed  to  a  person  other  than  the  grantee, 
with  instructions  to  retain  it  until  the  grantor's  death, 
is  not,  by  reason  of  the  reference  to  the  grantor's  death, 
testamentary  in  character,  is  generally  recognized,^* 
such  a  physical  transfer  being  regarded  as  involving 
delivery,  of  a  quasi  conditional  character,  of  the  instru- 
ment as  a  conveyance.*-^  If,  however,  the  grantor,  at 
the  time  of  handing  the  instrument  to  a  third  person,*^ 
or  to  the  grantee  himself,* '^  indicates  an  intention  that 
the  instrument  shall  have  no  operation  whatsoever  until 
the  grantor's  death,  and  that  in  the  meanwhile  he  may 
revoke  or  cancel  it,  or  treat  it  as  not  legally  existent, 
the  instrument  cannot  be  regarded  as  having  been  de- 
livered as  a  conveyance,  and  it  must  be  regarded,  either 
as  an  instrument  of  conveyance  which  is  nugatory  for 
lack  of  delivery,  or  as  a  testamentary  instrument  which 
is  valid  only  if  executed  as  such.*'^^ 


Baxter,  41  Ga.  512,  5  Am.  Rep. 
530;  Roth  v.  Michalis,  125  111. 
325,  17  N.  E.  809;  Heaston  v. 
Kreig,  167  Ind.  301,  119  Am.  St. 
Rep.  475,  77  N.  E.  805;  Poore 
V.  Poore,  55  Kan.  687,  41  Pac. 
973;  Watkins  v.  Dean,  10  Yerg. 
(Tenn.)  321,  31  Am.  Dec.  583; 
See  Kyle  v.  Perdue,  87  Ala.  423. 
6  So.  296;  Roth  v.  Michaelis,  125 
111.  325,  17  N.  E.  809;  Gage  v. 
Gage,  12  N.  H.  371. 

44.  Griswold  v.  Griswold,  148 
Ala.  239,  121  Am.  St.  Rep.  64, 
42  So.  554;  Fine  v.  Lasater,  110 
Ark.  425,  161  S.  W.  1147;  Hunt 
V.  Wicht,  174  Cal.  205,  162  Pac. 
639;  Thurston  v.  Tubbs,  257  111. 
465,  100  N.  E.  947;  American 
Nat  Bank  of  Lincoln  v.  Martin, 
277  111.  629,  115  N.  E.  721;  Wheel- 
er V.  Loesch,  51  Ind.  App.  262, 
99  N.  E.  502;  Schniinger  v. 
Bawek,  135  Iowa,  131,  112  N.  W. 


210;  Hoagland  v.  Beckley,  158 
Mich.  565,  123  N.  W.  12;  Peter- 
son V.  Bisbee,  191  Mich.  439,  158 
N.  W.  134;  Dickson  v.  Miller,  124 
Minn.  346,  145  N.  W.  112;  Saltz- 
sieder  v.  Saltzsieder,  219  N.  Y. 
523,  114  N.  E.  856;  Shaffer 
V.  Smith,  53  Okla.  352,  156  Pac. 
1188. 

45.  A7ite,    §   462. 

46.  Williams  v.  Kidd,  170  Cal. 
631,  Ann.  Cas.  1916E,  703,  151 
Pac.  1;  Shipley  v.  Shipley,  274 
111.  506,  113  N.  E.  906;  Tewkes- 
bury V.  Tewkesbury,  222  Mass. 
595,  111  N.  E.  394;  Felt  v.  Felt, 
155    Mich.   237,    118   N   .W.    953. 

47.  Benner  v.  Bailey,  234  IH. 
79,  84  N.  E.  638;  Felt  v.  Felt, 
155  Mich.  237,  118  N.  W.  953; 
Watson  V.  Magill,  85  N.  J.  Eq. 
592,   97  Atl.   43. 

47a.  Cox  V.  Schnerr,  172  Cal. 
371,  156  Pac.  509. 


§  467] 


Transfer  by  Will. 


1817 


Extrinsic  facts  and  circumstances  may  usually  be 
considered  in  order  to  ascertain  whether  a  particular 
instrument  was  or  was  not  intended  to  operate  as  a 
will."^^  That  is,  the  avimus  testandi,  if  not  apparent 
from  the  face  of  the  instrument,  may  be  shown  other- 
wise, and  consequently,  although  the  phrasinr^  of  an 
instrument  is  strongly  suggestive  of  a  conveyance  inter 
vivos,  or  even  of  a  contract,  it  may  operate  as  a  will.^^ 
Conversely,  although  the  instrument  contains  phrases 
suggestive  of  a  will,  it  may  be  shown  that  it  was  in- 
tended to  operate,  not  as  a  will  but  as  a  conveyance 
inter  vivos.^^  There  are  several  decisions,  however,  that 
if  an  instrument  contains  no  language  suggestive  of  a 
testamentary  intent,  such  intent  cannot  be  shown  by 
proof  of  extrinsic  circumstances.^^  And  there  are  also 
decisions  that  if  the  language  of  the  instrument  clearly 
shows  a  testamentary  intent,  it  cannot  be  shown  to 
have  been  intended  to  take  effect  as  a  conveyance.^- 


48.  Nichols  v.  Nichols,  2 
Phillim.  183;  Lister  v.  Smith,  3 
Swab.  &  Tris.  282;  Sharp  v. 
Hall,  86  Ala.  110,  11  Am.  St. 
Rep.  28;  Clarke  v.  Ransom,  50 
Cal.  595;  Tuttle  v.  Raish,  116 
Iowa,  331,  90  N.  W.  66  (semble) ; 
Wareham  v.  Sellers,  9  G.  &  J. 
(Md.)  98;  McGrath  v.  Reynolds, 
116  Mass.  566;  Prather  v.  Prath- 
er,  97  Miss.  311,  52  So.  449; 
Outlaw  V.  Hurdle,  46  N.  C.  150; 
Tozer  v.  Jackson,  164  Pa.  373, 
30  Atl.  400;  White  v.  Helmes,  1 
McCord  (S.  C.)  430;  Ferguson 
V.  Ferguson,  27  Tex.  339;  Bel- 
garde  V.  Carter,  — Tex.  Civ.  App. 
— ,  146  S.  W.  964;  Smith  v. 
Smith,  112  Va.  205,  33  L.  R.  A. 
(N.   S.)    1018,  70   S.  E.   491. 

49.  Gomez  v.  Higgins,  130 
Ala.  493,  30  So.  417;  Wellborn 
V.  Weaver.  17  Ga.  267,  63  Am. 
Dec.    235;    Blackman   v.    Preston, 


123  111.  381,  15  N.  E.  42;  Ison 
V.  Halcomb,  136  Ky.  523,  124  S. 
W.  813;  Moody  v.  Macomber, 
159  Mich.  657,  124  N.  W.  549; 
Sartor  v.  Sartor,  39  Miss.  760; 
In  re  Belcher,  66  N.  C.  51; 
Kiesecker's  Estate,  190  Pa.  St. 
476,  42  Atl.  886;  Ingram  v. 
Porter,  4  McCord    (S.  C.)    198. 

50.  Ward  v.  Ward.  104  Ky. 
857,  48  S.  W.  411:  Clayton  v. 
Liverman,  29  N.  C.  92;  Tozar  v. 
Jackson,  164  Pa.  373;  Faulk  v. 
Fa-ulk,  23  Tex.  653. 

51.  Clay  V.  Layton,  134  Mich. 
317,  96  N.  W.  458;  Dodson  v. 
Dodson,  142  Mich.  586,  105  N.  W. 
1110;  Elliott  V.  Cheney,  183  Mich. 
561,  150  N.  W.  163;  Noble  v. 
Fickes,  230  111.  594,  82  N.  E.' 
950,  13  L.  R.  A.  N.  S.  1203. 
And  see  Fellbush  v.  Fellbuali, 
216   Pa.   141,   65   Atl.   28. 

52.  Goodale   v.  Evans,  263  Mo. 


1S18  Eeal  Property.  [§  468 

Upon  the  question  whether  an  instrument  which 
purports  on  its  face  to  be  a  will,  and  is  duly  executed  as 
such,  can  be  shown  to  have  been  executed  without  any 
intention  that  it  have  a  legal  effect,  whether  it  can  be 
shown,  for  instance,  that  it  was  executed  merely  as  a 
memorandum,  or  to  illustrate  how  a  will  should  be  made, 
or  to  obtain  immunity  from  the  solicitation  of  a  person 
named  therein,  the  cases  are  not  entirely  in  accord. 
The  tendency  of  the  authorities  in  this  country  is  rather 
adverse  to  the  introduction  of  evidence  for  this  purpose, 
the  solemnity  of  the  execution  of  the  instrument  in  the 
statutory  mode  being  regarded  as  sufficient  to  exclude 
the  jDOSsibility  of  thus  asserting  a  lack  of  testamentary 
intent.^^  The  English  authorities  are  to  the  effect  that 
a  lack  of  such  intent  rnay  be  shown.^* 

§  468.  Signing  by  testator.  In  all  states  the 
statute  requires,  as  did  the  English  Statute  of  Frauds, 
that  a  will  shall  be  signed  by  the  testator,  or,  in  the 
majority  of  states,  by  some  other  person,  by  the  testa- 
tor's express  direction,  and  in  his  presence.^^  The 
testator's  owm  signature  may  be  by  means  of  a  mark, 
even  though  he  is  able  to  write,  provided  the  mark  is 
intended  as  a  signature  ;^*^  and  so,  in  signing,  he  may  use 

219,    172    S.    W.    370;     Phifer    v.  52  Am.  Dec.  at  p.  167. 
Mullis,    167    N.    C.    405,    83    S.    E.  54.     Nicholls      v.      Nicholls,      2 

582.  Phniim.    183;    Lister   v.    Smith,   3 

53.     BarnewaU    v.    Murrell,    108  Swab.  &  Tr.  282;  1  Jarman,  Wills, 

Ala.  366,  18   So.   831;    In  re  Ken-  23.      And    such    is    the    rule    in 

nedy,   159  Mich.  548,  28  L.  R.  A.  Massachusetts.      Fleming   v.    Mor- 

(N.    S.)     417,    134    Am.    St.    Rep.  rison,  187  Mass.  120,  105  Am.  St. 

743,  18  A.  &  E.  Ann.   892;    Heas-  Rep.   386,   72  N.   E.   499. 
ton    V.    Krieg,    167    Ind.    101,    119  55.     1    Stimson's   Am.    St.   Law, 

Am.   St.  Rep.   475,   77  N.   E.  805;  §    2640. 

Brown    v.     Avery,     63     Fla.     376,  56.     In    re    Clark's    Estate,    170 

Ann.    Cas.    1914A,    90.    58    So.    34.  Cal.   418,   149   Pac.   828;    Robinson 

And    see    Sewell    v.    Slingluff,    57  v.  Brewster,   140  111.   649,  33  Am. 

Md.  537.     As  to  the  admissibility  St.  Rep.  265;   Bevelot  v.  Lestrade, 

of  the  maker's  declarations  upon  153  111.  625,  38  N.  E.  1056;    Rook 

this     question,     see     3     Wigmore,  v.  Wilson,  142  Ind.  24,  51  Am.  St. 

Evidence,    §    1736,    and    note    in  Rep.    163;    Ahnert   v.    Ahnert,   98 


§  468]  Transfee  by  Will.  1819 

only  his  initials,  or  his  Christian  name,  or  even  adopt 
another  name  than  his  own.'"  When  the  signature  is 
by  a  person  other  than  the  testator,  the  requirements 
that  it  be  by  his  direction  and  in  his  presence  must  be 
strictly  comi^lied  with.^^  Even  in  the  absence  of  lan- 
guage in  the  statute  expressly  authorizing  the  signature 
to  be  made  by  another  than  the  testator,  by  the  latter 's 
direction  and  in  his  presence,  such  a  signature  would,  it 
seems,  ordinarily  be  upheld  as  being  in  effect  the  signa- 
ture of  the  testator  himself,  in  the  absence  of  language 
in  the  statute  clearly  sho^\dng  a  contrary  intention.^" 
This  would  be  in  accord  with  the  rule  which  prevails 
in  the  case  of  a  conveyance  inter  vivos, ^^  as  well  as 
in  other  connections,''^  and  a  different  construction  of 
the  statute  would  have  the  unfortunate  effect  of  dis- 
abling any  person,  incapacitated  by  physical  disability 
to  make  a  mark,  from  making  a  will.  There  appears  no 
reason  why  a  signature  by  another  in  one's  own  pre- 
sence, properly  proven,  should  not  be  as  effective  for  the 
purpose  of  a  will  as  for  other  purposes. 

In  regard  to  the  position  of  the  signature,  the  niles 
in  the  different  states  are  not  in  accord.  Under  statutes 
which  follow  the  English  Statute  of  Frauds  in  merely 

Kan.  768,  160  Pac.  201;  Nickerson  Greenough   v.    Greenough,    11    Pa. 

V.    Buck,    12    Gush.    (Mass.)    332;  St.    489.      See    Pool    v.    Buffum,    3 

Plate's  Estate,  148  Pa.   St.  55,  33  Ore.  438,  443. 

Am.  St.  Rep.  805;  In  re  Hers-  59.  In  re  McElwaine,  18  N. 
perger's  Estate,  24B  Pa.  569,  91  J.  Eq.  499,  the  statute  was  con- 
st. 942;  Wilson  v.  Craig,  86  strued  as  requiring  the  physical 
Wash.  465,  150  Pac.  1179.  act    of    signature    to    be    the    act 

57.  1  Jarman,  Wills,  79;  In  of  the  testator,  and  Robins  v. 
re  Savory,  15  Jur.  1042;  Knox's  Coryell,  27  Barb.  (N.  Y.)  559 
Estate,  131  Pa.  220,  6  L.  R.  A.  contains  a  dictum  that  such 
353,  17  Am.  St.  Rep.  798,  18  would  be  the  case  in  the  absence 
Atl.    1021.  of    words    in    the    statute    indica- 

58.  Page,    Wills,    §§    175,    176;  tive  of  a  contrary  intention. 
Waite    V.    Frisbie,    45    Minn.    361,  60.     Ante,  §  457. 

47    N.    W.    1069;    Murry    v.    Hen-  61.     See     authorities     cited     25 

nessey,    48    Neb.    608,    67    N.    W.  Am.    &    Eng.    Encyc.    Law     (2nd 

470;     Armstrong's    Ex'r    v.    Arm-  Ed.),   1066. 
strong's      Heirs,      29      Ala.      538; 


1S20  Eeal  Peopekty.  [§  468 

requiring  that  tlie  will  be  signed,  it  has  been  decided  that 
the  place  of  the  signature,  whether  by  the  testator  him- 
self, or  by  another  for  him,  is  immaterial,  and  that  it 
may  be  made  in  the  margin,  in  the  body  of  the  will,  or 
elsewhere.  Accordingly,  the  writing  of  the  testator's 
name  in  the  body  of  the  will,  as  when  he  commences  it, 
''I,  John  B.,"  is  sufficient,  under  such  statutes,  as  a. 
signature,  provided,  it  seems,  it  is  so  intended,  or  at 
least  another  signature  is  not  intended  to  be  added.'^^ 
The  statutes  of  a  number  of  states,  however,  require  the 
testator  to  "subscribe"  the  will,  or  contain  some  other 
express  requirement  that  the  signature  appear  at  the 
end  of  the  will,*^^  and  there  are  a  number  of  decisions 
upon  the  question  of  whether  the  signature  to  a  parti- 
cular will  was  at  the  end  thereof,  so  as  to  comply  wdth 
the  statute.*^*  The  solution  of  this  question  involves  the 
consideration,  not  only  of  whether  some  particular  lan- 
guage is  to  be  regarded  as  following  the  signature,"^ 
but  also  of  whether  this  language  is  of  such  a  disposi- 
tive character  as  properly  to  constitute  a  part  of  the 
will,  so  that  its  occurrence  after  the  signature  can  be 
regarded  as  conclusive  that  this  is  not  at  the  end  of 
the    will.*^*^      It   has,   moreover,   occasionally   been    con- 

62.  lieraayne  v.  Stanley,  3  ject  up  to  1907  are  collected  in 
Lev.  1;  Armstrong's  Ex'r  v.  Arm-  a  note  in  17  L.  R.  A.  N.  S.  at 
strong's  Heirs,  29  Ala.  538;  Miles',  p.  ;>53.  See  also  editorial  note, 
Will,  4  Dana.  (Ky.)  1;  Arm-  12  Columbia  Law  Rev.  380. 
strong  V.  Walton,  105  Miss.  337,  65.  See  e.  g.  Irwin  v.  Jac- 
62  So.  173;  Catlett  v.  Catlett,  ques,  71  Ohio  St.  395,  69  L.  R. 
55  Mo.  330;  Peace  v.  Edwards,  A.  422,  73  N.  E.  683;  In  re 
170  N.  C.  64,  Ann.  Cas.  1918A,  Swire,  225  Pa.  St.  188,  73  Atl. 
778,    86    S.    E.  '"807;     Lawson    v.  1110. 

Dawson.    21    Tex.    Civ.    App.    361,  66.     See    Baker    v.     Baker,     51 

53  S.  W.  64.     See  In  re  Phelan's  Ohio  St.  217;   In  re  Andrews,  162 

Estate,     82     N.     J.     316,     87     Atl.  N.    Y.    1,    48    L.    R.    A.    662,    76 

625;    In  re  Booth,  127  N.  Y.  109,  Am!  St.  Rep.  294;   Wineland's  Ap- 

24  Am.   St.  Rep.  429.  peal,    118    Pa.    St.    37,    4   Am.    St. 

63.  1    Stimson's   Am.    St.   Law,  Rep.   37. 

§    2640;    1    Woerner,    Administra-  That    a    clause    appointing    an 

tion,  §  39.  executor    is   part   of   the    will,    so 

64.  The    cases    upon    the    sub-      that    if    the    signature    precedes 


^  469]  Transfer  by  Will.  1821 

tended  that  the  wiU  is  not  signed  at  the  end  thereof 
by  reason  of  the  fact  that  a  very  considerable  blank 
space  exists  between  the  last  clause  of  the  will  and  the 
signature.*'^  The  signature  may  be  either  before  or  after 
the  *' attestation"  clause,^^  the  nature  of  which  is  ex- 
plained in  another  section.*^''  If  writing  is  added  below 
the  signature  subsequently  to  the  execution  and  publica- 
tion of  the  will,  it  is  merely  an  attempted  codicil,  not 
affecting  the  validity  of  the  will  as  expressed  in  the 
writing  before  the  signature/*^ 

§  469.  Acknowledgment  and  publication.  The 
statute  sometimes  requires  the  testator's  signature  to  be 
acknowledged  by  him  before  witnesses,  usually  as  an 
alternative  to  his  actual  signature  of  the  will  in  their 
presence,"^  No  particular  words  of  acknowledgment  are 
necessary,  it  being  sufficient  that  he  indicates  to  the 
witnesses,  either  by  words  or  acts,  that  the  signature 
is  his  and  the  instrument  his  act."-  In  at  least  three 
states,  on  a  construction  of  the  statute,  it  has  been 
regarded  as  necessary  that  the  witness  see  the  signa- 

snch  clause,  the  signature  is  not  70.    In    (re    Jacobson.    6    Dem. 

at     the     end     of     the     win,     see  Sur.   (N.  Y.)   298;    Chaplin,  Wills, 

Sisters    of    Charity    of    St.    Vin-  229. 

cent   de  Paul   v.    Kelly,    67   N.   Y.  71.     1    Stimson's   Am.    St.   Law, 

409.      Contra.    Ward    v.    Putnam,  §    2642.     See    Limbach    v.    Bolin 

119  Ky.  889,  85  S.  W.  179.  169     Ky.     204,     L.     R.     A.     1916D, 

67.  In  re  Seaman,  146  Cal.  1059,  183  S.  W.  495;  Ludlow  v. 
455,  106  Am  St.  Rep.  53,  80  Ludlow,  36  N.  J.  Eq.  597;  Sisters 
Pac.  700;  Morrow's  Estate,  204  of  Charity  of  St.  Vincent  de 
Pa.  St.  479,  54  Atl.  313.  See  Paul  v.  Kelly,  67  N.  Y.  409. 
Sears  v.  Sears,  77  Ohio  St.  104,  72.  Thompson  v.  Karme,  268 
17  L.  R.  A.  (N.  S.)  353,  11  A.  111.  168,  108  N.  E.  101;  Turner 
&    E.    Ann.    Cas.    1008.  v.    Cook,    36    Ind.    129;    Smith    v. 

68.  Younger  v.  Duffie,  94  N.  Holden,  58  Kan.  535,  50  Pac.  447; 
Y.  535,  46  Am.  Rep.  156;  In  re  Nickerson  v.  Buck,  12  Cush. 
Young's  Will,  153  Wis.  337,  141  (Mass.)  332;  In  re  Landy,  148 
N.  W.  226;  Hallowell  v.  Hallo-  N.  Y.  403;  In  re  Herring,  152 
well,  88  Ind.  251;  Page,  Wills,  N.  C.  258,  67  S.  E.  570;  In  re 
§    183.  Claflin,    73    Vt.    129,    87    Am.    St. 

69.  Post,   §   471.  Rep.   693. 
R.  P.— 40 


1S2: 


Eeal  Pbopbrty. 


[§  469 


ture  which  the  testator  acknowledges  to  be  his,^^  while  in 
others  this  is  regarded  as  unnecessary,  it  being  suffi- 
cient that  the  witness  is  told  by  the  testator  that  the 
instrument  has  been. signed  by  him,  or  that  he  otherwise 
indicates  to  the  witness  that  such  is  the  case.'^^'^' 

There  is  also,  in  some  states,  a  requirement  that  the 
testator  acknowledge,  in  the  presence  of  witnesses,  that 
the  instrument  is  his  last  will  and  testament,  this  con- 
stituting what  is  known  as  the  ''publication"  of  the 
will.''^''  The  publication,  however,  like  the  acknowledg- 
ment of  the  signature,  need  not  be  by  express  declara- 
tion, the  testator's  mere  assent  to  a  statement  by  an- 
other, or  incidental  reference  to  the  instrument  as  his 
will,  being  sufficient,  if  it  plainly  informs  the  witnesses 
that  the  instrument  is  his  will."^'  In  the  absence  of  a 
statutory  requirement,  it  is  unnecessary  that  the  testa- 
tor inform  the  witnesses  that  the  instrument  is  his  willJ^ 


73.  In  re  Mackay's  Will,  110 
N.  Y.  611,  1  L.  R.  A.  491,  6  Am. 
St.  Rep.  409,  18  N.  E.  433; 
KTunn  v.  Ehlert,  218  Mass.  471, 
196  N.  E.  163;  Pope  v.  Rogers, 
92  Conn.  248,  102  Atl.  583.  See 
editorial  notes,  28  Harv.  Law 
Rev.,  217;  27  Yale  Law  Journ., 
847. 

74-75.  White  v.  Trustees  of 
British  Museum,  6  Bing.  310; 
Hobart  v.  Hobart,  154  111.  610, 
45  Am.  St.  Rep.  151;  Gould  v. 
Chicago  Theological  Seminary, 
189  111.  282,  59  N.  E.  536; 
Dougherty  v.  Crandall,  168  Mich. 
281,  134  N.  W.   24. 

76.  1  Stimson's  Am.  St.  Law, 
§  2642;  Bigelow,  Wills,  47. 

77.  In  re  CuUberg's  Estate, 
(Cal.),  146  Pac.  888;  Harp  v. 
Parr,  168  111.  459,  48  N.  E.  113; 
Schierbaum  v.  Schemme,  157  Mo. 
1,  80  Am.  St.  Rep.  604;  In  re 
Williams'     Will,     50     Mont.     142, 


145  Pac.  957;  In  re  Ayers'  Es- 
tate, 84  Neb.  16,  120  N.  W.  491; 
Hildreth  v.  Marshall,  51  N.  J. 
Eq.  241,  27  Atl.  465;  Gilbert  v. 
Knox,  52  N.  Y.  125;  In  re  Meurer, 
44   Wis.    ;?92,   28   Am.    Rep.*59L 

78.  White  v.  Trustees  of 
British  Museum,  6  Bing.  310; 
Moodie  v.  Reid,  7  Taunt.  355; 
Barnewall  v.  Murrell,  108  Ala. 
366.  18  So.  831;  Canada's 
Appeal  from  Probate,  47  Conn. 
450;  In  re  Barry's  Will,  219  111. 
391,  76  N.  E.  219;  Turner  v. 
Cook,  36  Ind.  129;  Scott  v. 
Hawks,  107  Iowa,  723,  70  Am.  St. 
Rep.  228;  Osburn  v.  Cook,  11 
Cush.  (Mass.)  532,  59  Am.  Dec. 
155;  Watson  v.  Pipes,  32  Miss. 
451;  In  re  Skinner,  40  Ore.  571, 
67  Pac.  951;  Dauphin  County  His- 
torical Soc.  V.  Kelker,  226  Pa. 
St.  16,  134  Am.  St.  Rep.  1010; 
Long  V.  Michler,  133  Tenn.  51. 
179    S.    W.    477;    In   re    Claflin's 


§  470]  Transfer  by  Will.  1823 

§  470.  Competency  of  witnesses.  The  state  stat- 
utes, with  few,  if  any,  exceptions,  require  the  signature, 
or  acknowledgment  thereof,  to  be  in  the  presence  of 
two  and  sometimes  three  witnesses,"^  and  also,  as  just 
stated,  publication  of  the  will  as  such  in  the  presence 
of  witnesses  is  frequently  required.  If  there  be  less 
than  the  statutory  number  of  competent  witnesses,  the 
will  is  void.^"^  The  statute  usually  requires  the  witness 
to  be  ''competent"  or  " credible, "^^  and  the  term 
"credible"  is  construed  as  meaning  the  same  as  "com- 
petent."^- It  is  sufficient  that  the  competency  exists  at 
the  date  of  the  will;  and  the  fact  that  the  witness 
becomes  subsequently  incompetent  to  testify  does  not  in- 
validate the  will,  though  it  may  necessitate  that  the  will 
be  proven  by  secondary  evidence.**^  In  other  words,  the 
statutory  requirement  as  to  the  witnesses  necessary  to 
attest  the  execution  of  a  will  is  entirely  distinct  from  the 
question  as  to  how  the  will  shall  be  proved  after  the 
testator's  death,  though  such  proof  is  by  means  of  the 
attesting  witnesses,  if  they  are  then  competent  to  testify, 
and  are  accessible.^^ 

Will,  75  Vt.   19,   58  L.  R.  A.  261,      v.  Fellowes,  5  Mass.  219;    Combs' 
52  Atl.  1053.  Appeal,    105    Pa.    St.    158:    Brown 

79.  1    Stimson's   Am.    St.   Law,      v.  Pridgen,  56  Tex.  124. 

§  2644.  83.     Brograve  v.  Winder,  2  Ves. 

80.  See  Cureton  v.  Taylor,  89  Jr.  636;  Gillis  v.  Gillis,  96  Ga. 
Ga.  490,  15  S.  E.  643;  Poore  v.  1,  30  L.  R.  A.  143,  51  Am.  St. 
Poore,  55  Kan.  687;  Johnson  v.  Rep.  121,  23  S.  E.  107;  Fishpr 
Delome  Land  &  Planting  Co.,  v.  Spence,  150  111.  253,  41  Am. 
77  Miss.  15,  26  So.  360;  Simmons  St.  Rep.  360;  Warren  v.  Baxter. 
V.  Leonard,  91  Tenn.  183,  30  Am.  48  Me.  193;  Higgins  v.  Carltou.. 
St.   Rep.    875.  28    Md.    115,    92    Am.    Dec.    666; 

81.  1  Stimson's  Am.  St.  Law,  Sears  v.  Dillingham.  12  Mass 
§    2646.  358;    In  re  Holts'  Will,  56  Minn. 

82.  Hudson  v.  Flood,  5  Del.  33.  45  Am.  St.  Rep.  434;  Stewart 
450,  94  Atl.  760;  Gillis  v.  Gillis,  v.  Harriman,  56  N.  H.  25,  22  Am. 
96  Ga.  1,  30  L.  R..  A.  143,  51  Rep.  408;  Hoff  v.  State,  72  Tex. 
Am.  St.  Rep.  121,  23  S.  E.  107;  281.  The  statute  so  provides  in 
In  re  Noble's  Will,  124  HI.  266,  a  number  of  states.  1  Stim- 
15     N.     E.     850;     Clark's     Appeal,  son's  Am.  St.  Law,  §  2647. 

114  Me.   105,  95  Atl.   517;    Amory  84.     Cheatham    v.    Hatcher,    30 


1824  Eeal  Property.  [§  470 

The  competency  of  an  attesting  witness  is,  as  a 
general  rule,  determined  by  the  consideration  whether 
the  witness  is  a  person  competent  to  testify  in  a  court 
of  justice  in  regard  to  the  will,  and  questions  have  fre- 
quently arisen  as  to  the  competency  of  particular  per- 
sons at  common  law,  and  under  modern  statutory  pro- 
visions. At  common  law,  a '  beneficiary  under  the  will 
was  not  a  competent  witness,  because,  by  the  rules  pre- 
vailing in  courts  of  justice,  one  interested  in  litigation 
could  not  testify  therein.^^  Since  this  rule  had  the 
effect  of  frequently  invalidating  a  will  merely  because 
a  witness  had  a  small  interest  thereunder,  it  was  pro- 
vided by  statute  that  the  testamentary  provision  in 
favor  of  the  witness  should  be  void,  and  that  he  should 
be  regarded  as  a  competent  witness. ^'^  In  this  countrj^ 
there  are  statutes  of  a  more  or  less  similar  character  in 
most  of  the  states,  it  being  usually  declared,  as  in  Eng- 
land, that  the  devise  or  bequest  to  the  witness  shall  be 
void,  but  frequently  with  a  provision  giving  such  wit- 
ness what  he  would  have  taken,  in  the  absence  of  the 
will,  by  descent  or  distribution,  to  the  extent  that  this 
does  not  exceed  the  devise  or  bequest.^^  A  mere  charge 
upon  land  in  favor  of  a  witness  for  the  payment  of  debts 
due  him  will  not,  however,  in  most  states,  affect  his 
competency.^^  And  the  statute  also,  in  effect,  frequent- 
ly provides  that  the  witness  shall  not  lose  the  benefit  of 
such  a  provision  if  there  are  enough  witnesses  without 
him.^  In  a  few  states  a  mtness  to  a  will  is  no  longer 
regarded  as  disqualified  by  reason  of  his  beneficial  in- 
terest thereunder,  since  the  adoption  of  statutes  allow- 
ing even  interested  parties  to  testify  in  judicial  pro- 

Grat.     (Va.)     56,     32     Am.     Rep.  and  1  Vict.  c.  26,   §   14. 

650;  Trustees  of  Theological  Sem-  87.     1    Stimson's   Am.    St.   Law, 

inary    of   Auburn   v.    Calhoun,    25  §§  2650,  2651. 

N.    Y.    422;     Carlton    v.    Carlton,  88.     1    Stimson's   Am.    St.   Law, 

40   N.   H.   14.  §    2648. 

85.  1  Jarman,  Wills,  69;   Hold-  89.     1    Stimson's   Am.    St.    Law, 
fast  V.  Dowsing,  2  Strange,  1253.  §    2650;    1    Woerner,    Administra- 

86.  25  Geo.  II.  c.  6;  7  Wm.  IV.  tion,    §    41. 


§  470] 


Transfer  by  Will. 


1825 


ceedings.^"  An  executor  named  in  the  will  is  not  usually 
regarded  as  so  interested,  by  reason  of  his  right  to  com- 
missions, as  to  be  disqualified  as  a  witness  thereto.^ ^ 
In  two  or  three  states,  however,  a  different  view  ob- 
tains.^2 

At  common  law,  a  husband  or  wife  is  incompetent 
as  a  W'itness  in  regard  to  any  matter  in  which  the  other 
has  a  pecuniary  interest,®^  and  it  has  accordingly  been 
decided  that  the  husband  or  wife  of  a  devisee  or  a  lega- 
tee is  not  a  competent  witness  to  the  will.^^  Modern 
statutes,  however,  removmg  the  disability  of  the  hus- 
band and  wife  of  a  party  in  interest  to  testify,  have  in 
some  states  been  construed  as  removing  the  incom- 
petency as  an  attesting  witness  to  a  will,^^  and  the  same 
effect  has  in  one  state  at  least  been  given  to  a  statute 


90.  See  White  v.  Bower,  56 
Colo.  575  136  Pac.  1053;  Leitch 
V.  Leitch  114  Md.  336  79  Atl. 
600;  In  re  Wiese's  Estate  98 
Neb.  463,  153  N.  W.  556,  L.  R.  A. 
1915E,   832. 

91.  Comstock  v.  Hadlyme  Ec- 
clesiastical Sec,  8  Conn.  254,  20 
Am.  Dec.  100;  Meyer  v.  Fogg, 
7  Fla.  292,  68  Am.  Dec.  41; 
Davenport  v.  Davenport,  116  La. 
1009,  114  Am.  St.  Rep.  575,  41 
So.  240;  Wyman  v.  Symmes,  10 
Allen  (Mass.)  153;  Sears  v.  Dil- 
lingham, 12  Mass.  358;  Geraghty 
V.  Kilroy,  103  Minn.  286,  114  N. 
W.  838;  Stewart  v.  Harriman,  56 
N.  H.  25,  22  Am.  Rep.  408; 
Children's  Aid  Soc.  v.  Loveridge, 
70  N.  Y.  387;  Snyder  v.  Bull,  17 
Pa.  St.  54;  Coalter  v.  Byan,  1 
Gratt.  (Va.)  18;  Richardson  v. 
Richardson,  35  Vt.  298. 

92.  Tucker  v.  Tucker,  27  N. 
C.  161,  (as  regards  personal  prop- 
erty) ;  Jones  v.  Grieser,  238  111. 
183,  15  A.  &  E.  Ann.  Cas.  787  & 


note,  87  N.  E.  295.  And  the  dis- 
qualification has  been  held  to  ex- 
tend to  the  wife  of  an  executor. 
Fearn  v.  Postlethwaite,  240  111. 
626,  88  N.  E.  1054;  Huie  v.  Mc- 
Connell,   47   N.   C.   455. 

93.  See  the  discussion  and 
criticism  of  this  rule  in  1  Wig- 
more,    Evidence,    §    600    et    seq. 

94.  Windham  v.  Chetwynd,  1 
Burrows,  414,  424;  Sloan's  Estate. 
184  111.  579,  56  N.  E.  952;  Sul- 
livan V.  Sullivan,  106  Mass.  474; 
Rucker  v.  Lambdin,  12  Smedes 
&  M.  (Miss.)  230;  Hodgman  v. 
Kittredge,  67  N.  H.  254,  68  Am. 
St.  Rep.  66i,  32  Atl.  158;  Gid- 
dings  V.  Turgeon,  58  Vt.  106,  4 
Atl.  711. 

95.  Hawkins  v.  Hawkins,  54 
Iowa,  443,  6  N.  W.  699;  Iji  re 
Holt's  Will,  56  Minn.  33,  22  L. 
R.  A.  481,  45  Am.  St.  Rep.  434. 
57  N.  W.  219;  Lippincott  v. 
Wikoff,  54  N.  J.  Eq.  107,  33  Atl. 
305. 


1826  Real  Pbopehty.  [§  471 

modifying  the  common  law  doctrine  of  unity  of  interest 
of  husband  and  wife.^^ 

A  statute  invalidating  a  provision  in  favor  of  a 
witness  in  order  to  render  the  witness  competent  has 
occasionally  been  construed  to  apply  to  a  provision  in 
favor  of  the  husband  of  a  witness.^ ^  Such  a  statute  has 
not,  however,  usually  been  given  such  a  construction.^^ 
In  a  number  of  states  a  devise  or  legacy  to  the  husband 
or  wife  of  a  subscribing  witness  is  expressly  made  void 
by  the  statute.^^ 

§  471.  Attestation  and  subscription.  The  witnesses 
as  to  the  execution  or  publication  of  a  will  are  required, 
usually,  not  only  to  witness  the  performance  of  these 
acts  by  testator,  but  also  to  sign  their  names  upon  the 
instrument  "in  the  presence  of"  testator,  and  sometimes 
'4n  the  presence  of"  each  other.^  The  question  of 
what  constitutes  "presence,"  within  this  requirement, 
has  been  the  subject  of  numerous  decisions,  of  a  some- 
what conflicting  character.^  The  testator  and  the  wit- 
nesses need  not,  it  has  been  held,  be  in  the  same  room, 
in  order  to  render  the  signatures  of  the  latter  "in  the 
presence  of"  the  former,  it  being  sufficient  that  he  sees 
them,  as  through  a  door  or  window;^  and  though  the 
testator  does  not  actually  see  the  witnesses  sign,  this  is 

96.  Gamble  v.  Butchee,  87  Tex.       Rep.  360,  37  N.  E.  314. 

643,   30   S.  W.   861.  99.     1    Stimson's    Am.    St.    Law 

97.  Winslow     v.     Kimball,     25      §    2650. 

Me.    493;    Jackson    v.    Durland,    2  1.     1    Stimson's    Am.    St.    Law, 

Johns.    Cas.    (N.   Y.)    314;    Moore  §  2644. 

V.    McWilliams,    3    Rich.    Eq.    (S.  2.     The    cases    are    collected    in 

C.)   10.  note  in   6   A.   &   E.   Ann.   Cas.   at 

98.  White  v.  Bower,  56  Colo.  p.  414.  See  also  editorial  ^.note, 
575,  136  Pac.  1053;  Fisher  v.  14  Columbia  Law  Rev.  180. 
Spence,  150  111.  253,  37  N.  E.  314,  3.  Shires  v.  Glascock,  2  Salk. 
41  Am.  St.  Rep.  314;  In  re  Holt's  688;  Casson  v.  Dade,  1  Brown. 
Will,  56  Minn.  33,  45  Am.  St.  Ch.  99;  Ambre  v.  Weishaar,  74 
Rep.  434,  22  L.  R.  A.  481;  Hodg-  111.  109;  Riggs  v.  Riggs,  135 
man  v.  Kittredge,  67  N.  H.  254,  Mass.  238,  46  Am.  Rep.  464;  In 
68  Am.  St.  Rep.  661;  Giddings  v.  re  Meurer,  44  Wis.  392  28  Am. 
Turgeon,   58  Vt.   106,   41  Am.   St.  Rep.    591. 


§  471] 


Transfer  by  Will. 


1827 


usually  regarded  as  taking  place  in  his  presence,  if  he 
is  physically  able,  by  shifting  his  gaze,  to  see  the  act 
of  signing,  provided  at  least  he  can  do  this  without  pain 
or  danger  to  life.^  He  must  know  what  the  witnesses  are 
doing,^  and  the  signing  is  not  in  his  presence  if  he  is  in 
such  a  state  mentally  as  not  to  have  such  knowledge." 
When  the  will  is  signed  in  the  room  in  which  testator 
is,  there  is,  it  seems,  a  presumption  that  the  requirement 
is  satisfied.'''  The  statutory  requirement  is  not  usually 
regarded  as  satisfied  by  an  acknowledgment  by  the 
witness,  in  the  testator's  presence,  of  a  signature  pre- 
viously affixed  by  him  out  of  the  testator's  presence.^ 

The  statute  occasionally  provides  in  express  terms 
that  the  witnesses  shall  attest  the  will  at  the  request 
of  the  testator,  and  even  though  the  statute  makes  no 
reference  to  a  request,  it  has  been  held  that  there  must 


4.  1  Jarman,  Wills,  89  et  seq; 
Bigelow,  Wills,  55;  Schouler, 
Wills,  §§  340-342.  See  Gordon 
V.  Gilmer,  141  Ga.  347,  80  S.  E. 
1007;  Drury  v.  Connell,  177  111. 
43,  52  N.  E.  368;  Raymond  v. 
Wagner,  178  Mass.  315,  59  N.  E. 
811;  Maynard  v.  Vinton,  59  Mich. 
139;  Watson  v.  Pipes,  32  Miss. 
451;  Jones  v.  '  Turk.  48  N.  C. 
202.  Compare  McKee  v.  McKee's 
Ex'r,  155  Ky.  738,  160  S.  W. 
261;  Cunningham  v.  Cunning- 
ham, 80  Minn.  180,  81  Am.  St. 
Rep.  256,  51  L.  R.  A.  642;  Healey 
V.  Bartlett,  73  N.  H.  110,  6  A. 
&  E.   Ann.  Cas.   413. 

5.  1  Jarman,  Wills,  89;  Orn- 
dorff  V.  Hummer,  12  B.  Men. 
(Ky.)  619;  Watson  v.  Pipes,  32 
Miss.  451;  Baldwin  v.  Baldwin, 
81  Va.  405.  But  if  testator  is 
blind,  he  may  take  cognizance 
through  his  other  senses  of  the 
signing  by  a  witness.  Riggs  v. 
Rlggs,  135  Mass.  238,  46  Am.  Rep. 


464;  In  re  Allred's  Will,  170  N. 
C.  153,  86  S.  E.  1047;  Ray  v. 
Hill,    3    Strobh.    (S.   C.)    297. 

6.  Right  V.  Price,  1  Doug. 
(Mich.)  241;  Chappel  v.  Trent, 
90    Va.    849,    19    S.    E.    314. 

7.  In  re  Howard,  51  B.  Mon. 
(Ky.)  199,  17  Am.  Dec.  40; 
Watson  V.  Pipes,  32  Miss.  451; 
Stewart  v.  Stewart,  56  N.  J. 
Eq.  761,  57  N.  J.  Eq.  664;  Neil 
V.  Neil,  1  Leigh.  (Va.)  6;  Bald- 
win V.  Baldwin,  81  Va.  405. 

8.  Calkins  v.  Calkins,  216  111. 
458,  1  L.  R.  A.  (N.  S.)  393  and 
note,  108  Am.  St.  Rep.  233;  Men- 
dell  V.  Dunbar,  169  Mass.  74 
61  Am.  St.  Rep.  277;  Den  v. 
Milton,  12  N.  J.  L.  70;  Ragland 
V.  Huntingdon,  23  N.  Car.  561; 
Pawtucket  v.  Ballou,  15  R.  I.  58, 
2  Am.  St.  Rep.  868.  But  see 
contra,  Cook  v.  Winchester,  81 
Mich.  581,  8  L.  R.  A.  822  and 
note;  Sturdivant  v.  Birchett,  10 
Gratt.    (Va.)    67,    11   Gratt.   220. 


1828  Eeal  Property.  [§  471 

be  a  request.*^  But  the  request  need  not  be  in  express 
terms, ^'^  and  it  appears  to  be  sufficient  that  the  circum- 
stances are  such  as  to  show  that,  in  attesting  the  will, 
the  witnesses  are  acting  in  accordance  with  the  testa- 
tor's wish  at  the  time,^^  as  when  the  request  is  made 
by  a  third  person  in  the  testator's  presence  and  the 
latter 's  conduct  indicates  an  acquiescence  in  such  re- 
quest.^- There  is  evidently  no  such  assent  on  the  part 
of  testator  if  he  is  not  in  a  condition  to  know  what  is 
being  done.^^ 

An  '^attestation  clause,"  which  consists  of  a  recital, 
signed  by  the  witnesses,  of  a  compliance  with  the 
necessary  requirements  in  execution  of  the  will,  should 
always  be  appended  to  the  will,  since  it  furnishes 
prima  facie  evidence  of  its  due  execution,  and  may 
serve  to  refresh  the  memory  of  the  witnesses  as  to  the 
circumstances  of  the  execution.  Such  a  clause  is  not 
however,  necessary  to  the  validity  of  the  will,  the  stat- 
utes merely  requiring  the  witnesses  to  sign  their  names 
upon  the  document,  or,  in  some  states,  upon  the  docu- 
ment at  the  end  or  foot  of  the  will  itself. ^^ 

9.  Gross  V.  Burneston,  91  Md.  Savage  v.  Bowen,  103  Va.  540,  49 
383,    46    Atl.    993;    Burney   v.    Al-      S.  E.  668. 

len,    125    N.    C.    314,    74    Am.    St.  12.     HufE    v.    Huff,    41    Ga.    696; 

Rep.    637;    Savage   v.    Bowen,    103  Harp    v.    Parr,    168    HI.    459,    48 

Va.    540,    49    S.    E.    668;     Skinner  N.    E.    113;     Conway    v.    Vizzard, 

v.    American   Bible    Soc,   92    Wis.  122  Ind.  266,  23  N.  E.  771;  Iii  re 

209,   65  N.  W.  1037.  HuU's    WiU,     117    Iowa,    738,    89 

10.  Rogers  v.  Diamond,  13  N.  W.  979;  Martin  v.  Bowdern, 
Ark.  474;  Schierbaum  v.  Schem-  158  Mo.  379,  59  S.  W.  227; 
me,  157  AIo.  1,  80  Am.  St.  Rep.  Matter  of  Nelson,  141  N.  Y.  152, 
604;  Coffin  v.  Coffin,  23  N.  Y.  9,  36  N.  E.  3;  Burney  v.  Allen,  125 
80  Am.  Dec.  235;  Savage  v.  N.  Car.  314,  74  Am.  St.  Rep.  637, 
Bowen,  103  Va.  540,  49  S.  E.  G68;  34  S.  E.  500;  In  re  Skinner,  40 
Skinner  v.  American  Bible  Soc.  Ore.  571.  63  Pac.  523,  67  Pac. 
92   Wis.   209,   65   N.  W.    1037.  951. 

11.  In  re  MuUin's   Estate,    110  13.     McMechen  v.  McMechen,  17 
Gal.  252,  42  Pac.  645;   Higgins  v.  W.   Va.    683,    41   Am.    Rep.    682. 
Carlton,  28  Md.  115,  92  Am.   Dec.  14.     1     Jarman,     WiUs,     (Bige- 
666;    Gross  v.  Burneston,   91    Md.  low's   Ed.),    123;    Schouler,   Wills, 
383,   46   Atl.    993;    In   re   Voorhis,  §   346. 

125     N.    Y.    765,     26    N.     E.    935; 


<§§  472,  473]  Transfer  BY  Will.  1829 

§  472.  HologTaphic  and  nuncupative  wills.  By 
statute  in  a  number  of  states,  "holographic"  wills,  that 
is,  wills  entirely  written  by  testator  himself,  are  valid, 
•  though  not  executed  in  accordance  with  the  ordinary 
statutory  requirements,  if  signed  by  him,  and  if,  in  two 
states  at  least,  found  among  the  valuable  papers  and 
effects  of  deceased,  or  entrusted  by  him  to  another  for 
safe  keeping.^^ 

"Noncui)ative"  wills,  that  is,  wills  consisting  of 
merely  oral  declarations  by  testator  in  the  presence  of 
witnesses,  were  allowed  before  the  passage  of  the 
Statute  of  Frauds,  but  by  that  statute  the  right  to  make 
them  was  much  restricted,  the  amount  of  property  which 
could  be  so  disposed  of  being  greatly  limited,  and  it  also 
being  provided  that  they  could  be  made  only  in  the  last 
sickness  of  deceased,  before  three  witnesses,  and  usually 
in  his  own  habitation.  In  this  country  there  are  usually 
statutory  provisions  of  a  somewhat  similar  character, 
providing  especially,  however,  for  the  making  of  such 
wills  by  soldiers  in  actual  military  service,  and  by  mari- 
ners at  sea.  The  law  of  nuncupative  wills  never  applied 
in  England  to  real  property,  in  the  absence  of  a  local 
custom  to  the  contrary,  since,  before  the  Statute  of 
Wills,  such  property  could  not  be  devised,  and  since,  by 
the  terms  of  that  statute,  as  well  as  by  the  Statute  of 
Frauds,  a  will  of  lands  was  required  to  be  '  *  in  writing. ' ' 
The  statutes  on  the  subject  in  this  country  usually  re- 
strict such  wills  to  personal  property.^® 

§  473.  Undue  influence.  The  question  whether  a 
certain  testamentary  disposition  was  the  result  of  the 
exercise  of  "undue  influence"  upon  the  testator  is  the 
subject  of  frequent  litigation.  The  courts  have  not 
been  very  successful  in  defining  what  constitutes  uiulue 

15.     1    Stimson's   Am.    St.   Law,  16.     Bigelow,  Wills,   03  et  sci].; 

§   2645.     See  Page,  Wills,  §§   229-  Page,   Wills,    §§    232-240;    1    Stim- 

231;    Schouler,    Wilts    (5th    Ed.),  son's  Am.  St.  Law,   §§   2700-2705; 

§"255.  Schouler,    Wills,    §    359,   et   scq. 


1830 


Real  Peopebty. 


[§  473 


influence  sufificient  to  defeat  a  testamentary  provision, 
but  it  is  stated,  in  a  general  way,  that  it  must  be  such 
persuasion  or  importunity  as  to  overpower  the  will  of 
the  testator,  without  convincing  his  judgment,^'^  that  is, 
it  involves  a  substitution  of  another  person's  will  for 
that  of  testator.^^  But  the  mere  fact  that  one  per- 
suades the  testator  to  make  a  will  in  his  favor,  or  in- 
duces him  to  do  so  by  argument  or  flattery,  does  not, 
of  itself,  show  undue  influence, ^^  and  so  ''appeals  to  the 
affections  or  ties  of  kindred,  to  a  sentiment  of  gratitude 
for  past  services,  or  pity  for  future  destitution,  or  the 
like,"  are  legitimate,  and  do  not  affect  the  validity  of 
the  will.20 

The  question  of  undue  influence  is  entirely  distinct 
from  that  of  the  mental  capacity  of  the  testator  to  make 
a  will,  which  will  hereafter  be  considered  i^i  but  the 
fact  that,  though  mentally  capable  of  making  a  will,  he 
is  wanting  in  physical  and  mental  vigor,  is  usually  an 


17.  Hall  V.  Hall,  L.  R.  1  Prob. 
&  Dlv.  481;  Coghill  v.  Kennedy, 
119  Ala.  641,  24  So.  459;  In  re 
Clark's  Estate,  (Cal.),  149  Pac. 
828;  Wiley  v.  Gordan,  181  Ind. 
252,  104  N.  B.  500;  Kennedy  v. 
Kennedy.  124  Md.  38,  91  Ail. 
759;  Gay  v.  GiUilan,  92  Mo.  250, 
1  Am.  St.  Rep.  712;  In  re  Tuni- 
son's  Will,  (N.  J.),  93  Atl.  1087; 
In  re  Diggins'  Estate,  76  Ore. 
341,  149  Pac.  73;  Herster  v.  Her- 
ster  122  Pa.  239,  9  Am.  St.  Rep. 
95;  Scott  V.  Townsend,  106  Tex. 
322,   166   S.   W.   1138. 

18.  Wingrove  v.  Wingrove,  11 
Prob.  Div.  81;  Phillips  v.  Gaither, 
191  Ala.  87,  67  So.  1001;  May- 
nard  v,  Vinton,  59  Mich.  139, 
60  Am.  Rep.  276;  Schmidt  v. 
Schmidt,  47  Minn.  451,  50  N. 
W.  598;  Riley  v.  Sherwood,  144 
Mo.  354,  45  S.  W.  1077;  Wadding- 
ton  V.    Buzby,    45   N.   J.   Eq.    173, 


14  Am.  St.  Rep.  706;  In  re 
Mueller's  Will,  170  N.  C.  28,  83 
S.  E.  719;  Cook  v.  Bolduc,  24 
Wyo.  281,  157  Pac.  580,  158  Pac. 
266. 

19.  1  Woerner,  Administration, 
§  31;  McDaniel,  v.  Crosby,  19 
Ark.  533;  Yoe  v.  McCord,  74  111. 
S3;  Bush  v.  Lisle,  89  Ky.  393, 
12  S.  W.  762;  In  re  Mclntyre's 
Estate,  193  Mich.  257,  159  N.  W. 
517;  Hughes  v.  Murtha,  32  N. 
J.  Eq.  288;  Trost  v.  Dingier, 
118  Pa.  St.  259,  4  Am.  St.  Rep. 
593. 

20.  HaU  V.  Hall,  L.  R.  1  Prob. 
&  Div.  481;  Bevelot  v.  Lestrade, 
153  111.  625,  38  N.  E.  1056;  Gay 
V.  Gillilan,  92  Mo.  250,  1  Am. 
St.  Rep.  712;  In  re  Mondorf's 
Will,  110  N.  Y.  450,  18  N.  E.  256; 
In  re  Craven's  Will,  169  N.  C. 
561,    86    S.    E.    587. 

21.  See  post,   §   595. 


§  474] 


Transfer  by  Will. 


1831 


important  consideration  in  determining  the  question  of 
undue  influence.-^ 

The  fact  that  a  beneficiary  under  the  will  sustains 
a  confidential  relation  towards  testator,  such  as  that 
of  attorney  or  guardian,  does  not  of  itself,  according 
to  some  authorities,  raise  a  presumption  of  undue  in- 
fluence sufficient  to  overthrow  the  will,  though,  under 
such  circumstances,  much  slighter  evidence  of  improper 
acts  on  the  part  of  the  beneficiary  will  be  required  than 
ordinarily.^^  By  some  decisions,  however,  the  mere 
existence  of  the  confidential  relation  raises  a  presump- 
tion that  the  will  is  invalid.^^  That  a  beneficiary  who  is 
not  a  near  relative  himself  prejDared  the  instrument  is 
usually  regarded  as  tending  to  show  undue  influence.-^ 

§  474.  Lapsed  and  void  devises.  As  a  consequence 
of  the  "ambulatory"  nature  of  a  will,  which  prevents  its 


22.  Griffith  v,  DifEenderffer,  50 
Md.  466;  Sullivan  v.  Foley,  112 
Mich.  1,  70  N.  W.  322;  Shailer 
V.  Bumstead,  99  Mass.  112;  Wad- 
dington  v.  Buzby,  45  N.  J.  Eq. 
173,  14  Am.  St.  Rep.  706,  16  AtL 
690;  Turner  v.  Butler,  253  Mo. 
202,   161   S.  W.  765. 

23.  Parfiitt  v.  Lawless,  L.  R. 
2  Prob.  &  Div.  462;  Bancroft  v. 
Otis,  91  Ala.  279,  24  Am.  St.  Rep. 
904,  8  So.  286;  Lockridge  v. 
Brown,  184  Ala.  106,  63  So.  524; 
Carter  v.  Dixon,  69  Ga.  82;  Pil- 
strand  v.  Swedish  Methodist 
Church,  275  111.  46,  113  N.  E.  958; 
Denning  v.  Butcher,  91  Iowa, 
425,  59  N.  W.  69;  In  re  Smith's 
Will,  95  N.  Y.  516;  Bigelow, 
Wills,  89. 

24.  Connor  v.  Stanley,  72  Cal. 
556,  1  Am.  St.  Rep.  84;  Kirby's 
Appeal,  91  Conn.  40,  98  Atl.  349; 
Meek  v.  Perry,  36  Miss.  190, 
Wendling    v.     Bowden,     252     Mo. 


647,  161  S.  W.  774;  Carroll 
V.  Hause,  48  N.  J.  .  Eq.  269,  27 
Am.  St.  Rep.  469;  Miller  v. 
Miller,  187  Pa.  572,  41  Atl.  277; 
Hartman  v.  Strickler,  82  Va. 
225;  1  Woerner,  Administration, 
§   32. 

25.  Barry  v.  Butlin,  1  Curt. 
Ecc.  637;  Coghill  v.  Kennedy,  119 
Ala.  641,  24  So.  459;  Richmond's 
Appeal,  59  Conn.  226,  21  Am.  St. 
Rep.  85;  Bush  v.  Delano,  113 
Mich.  321.  71  N.  W.  628;  Yardley 
V.  Cuthbertson,  108  Pa.  St.  ;?95, 
56  Am.  Rep.  218;  In  re  Barney's 
Will,  70  Vt.  352,  40  Atl.  1027; 
Montague  v.  Allan's  Ex'r,  78  Va. 
592,  49  Am.  Rep.  384;  Bigelow, 
Wills   87,    89, 

26.  1  Jarman,  Wills,  307;  2 
Woerner,    Administration,    §    434. 

27.  Page,  Wills,  §  740;  Merrill 
V.  Hayden,  80  Me.  133,  29  Atl. 
949;  Crum  v.  Blis.s,  47  Conn.. 
592. 


1832  Real  Property.  [§  474 

operation  until  the  death  of  the  testator,  the  death  of  a 
devisee  or  legatee  during  the  testator's  lifetime  will,  in 
the  absence  of  a  statute  to  the  contrary,  render  the  gift 
absolutely  void.^^  And  so  a  devise  or  legacy  to  a  cor- 
poration may  lapse  or  become  void  by  the  dissolution  of 
the  corporation  before  testator's  death.^"  The  testator 
may,  however,  make  a  substitutionary  gift  of  that  partic- 
ular property  in  case  the  other  gift  fails,  owing  to  the 
death  of  the  beneficiary  or  for  other  reasons,  and  this 
will  be  carried  out  by  the  courts.-*  The  fact  that  the 
gift  is  in  terms  to  one  "and  his  heirs"  does  not,  of  it- 
self, show  any  intention  to  make  a  substitutionary  gift 
to  the  heirs,  since  this  is  a  word  merely  of  limitation, 
and  not  of  purchase.-^  In  some  cases,  however,  the  use 
of  the  words  "and  heirs"  has  been  construed  as  con- 
stituting a  substitutional  gift  to  the  heirs,^°  and  this  is 
the  effect  usually  given  to  a  provision  for  one  "or  his 
heirs.  "^^ 

In  most  of  the  states  there  is  at  the  present  day 
a  statutory  provision  naming  a  class  of  persons  who 
may  take  in  case  of  the  death  of  the  beneficiary  during 
the  lifetime  of  the  testator.  In  many  states  it  is  pro- 
vided that  a  devise  or  bequest  to  a  child  or  other  des- 
cendant of  the  testator  shall,  in  case  of  the  death  of 
the  devisee  or  legatee  before  the  testator,  pass  to  the 
issue  or  occasionally  the  heirs  of  such  devisee  or  lega- 

28.  1  Jarman,  Wills,  308;  Mass.  382;  Hand  v.  Marcy,  28 
Page,  Wills,  §  741;  Wilde  v.  Bell,      N.  J.   Eq.  59. 

86  Conn.  610,  87  Atl.  8;   Gilmor's  30.     Gilmor's     Estate,     154     Pa. 

Estate,  154  Pa.  St.  523,  35  Am.  St.  St.   523,   35  Am.   St.  Rep.   855,  26 

Rep.    855,   26   Atl.   614;    Rivers  v.  Atl.   614;    Gittings   v.   McDermott, 

Rivers,    36    S.    C.    302,    15    S.    E.  2  Mylne  &  K.  69,  73;    2  Woerner, 

137.      See    ante,    §    26.  Administration,  §  434. 

29.  Gibbons  v.  Ward,  115  Ark.  31.  2  Woerner,  Administra- 
184,  171  S.  W.  90;  Maxwell  v.  tion,  §§  417,  434;  Hand  v.  Marcy, 
Featherston,  83  Ind.  339;  In  re  28  N.  J.  Eq.  59;  O'Rourke  v. 
Wells,  113  N.  Y.  396,  10  Am.  St.  Beard,  151  Mass.  9,  23  N.  E. 
Rep.   137;    Kimball   v.    Story,    108  576.     See  Keniston  v.  Adams,   80 

Me.  290,  14  Atl.  203. 


§  474]  Transfer  by  Will.  1833 

tee.^-  In  some,  the  same  provision  is  made  in  favor 
of  the  issue  of  any  devisee  or  legatee  who  is  a  relation 
of  the  testator,  while,  in  others,  the  issue  of  any  devisee 
or  legatee  dying  before  the  testator  takes  the  gift,  unless 
a  contrary  intention  appears.^^ 

In  the  case  of  a  devise  of  land  to  two  or  more  in- 
dividuals, to  take  as  tenants  in  common  and  not  as 
joint  tenants,^*  if  one  of  them  dies  before  testator,  the 
devise  will,  at  common  law,  lapse  as  to  his  share,  in  the 
absence  of  controlling  language  to  the  contrary,  while 
the  other  donee  or  donees  will  take  the  same  interest 
as  if  such  death  had  not  occurred.^^^  On  the  other 
hand,  in  the  case  of  a  devise  to  members  of  a  class, 
such  as  children  or  nephews,  if  one  who  would  other- 
wise be  a  member  of  the  class  dies  before  the  testator, 
his  share  does  not  lapse,  even  at  common  law,  but  the 
property  is  divided  between  the  members  of  the  class, 
as  ascertained  at  the  time  of  testator's  death,  or  at  such 
later  date  as  may  be  indicated  in  the  will.^*^    And  even 

32.  1  Stimson's  Am.  St.  Law,  36.  In  re  Warner's  Appeal,  39 
§    2823(A).  Conn.     253;     Lancaster     v.     Lan- 

33.  1  Stimson's  Am.  St.  Law,  caster,  187  lU.  540,  79  Am.  St. 
§  2823(B),  (C).  See  Page,  Wills,  Rep.  234,  58  N.  E.  462;  In  re 
§§  742,  743;  2  Woerner,  Admin-  Nicholson's  Will,  115  Iowa,  493, 
istration,    §    435.  91   Am.    St.    Rep.    175,    88    N.    W. 

34.  If  the  gift  is  to  them  as  1064;  Stetson  v.  Eastman,  84 
joint  tenants,  those  of  them  who  Me.  366,  24  Atl.  868;  Shots  v. 
survive  the  testator  will  take  Poe,  47  Md.  513,  28  Am.  Rep. 
all.     See  ante,  §  191.  485;    Dove  v.   Johnson   141   Mass. 

35.  Bill  V.  Payne,  62  Conn.  287,  5  N.  E.  520;  In  re  Wood- 
140,  25  Atl.  354;  Magnuson  v.  ward's  Estate,  84  Minn.  161, 
Magnuson,  197  111.  496;  Morse  v.  86  N.  W.  1004;  Carter  v.  Long, 
Hayden,  82  Me.  227,  19  Atl.  443;  181  Mo.  701,  81  S.  W.  162;  Camp- 
Best  V.  Berry,  189  Mass.  510,  bell  v.  Clark,  64  N.  H.  328,  10 
109  Am.  St.  Rep.  651;  Moffett  v.  Atl.  702;  Campbell  v.  Rawdon, 
Elmendorff,  152  N.  Y.  475.  57  Am.  18  N.  Y.  412;  Pimel  v.  Betjemann, 
St.  Rep.  529,  46  N.  E.  845;  183  N.  Y.  194,  2  L.  R.  A.  (N.  S.) 
Twitty  V.  Martin,  90  N.  C.  643;  580,  5  A.  &  E.  Ann.  Cas.  289; 
Strong  V.  Ready,  9  Humphr.  Robinson  v.  McDIarmId,  87  N. 
(Tenn.)     168;     In    re    Sharpless'  C.   643. 

Estate,  214  Pa.  335,  63  Atl.  884. 


1834r  Keal.  Property.  [§  474 

tliough  tlie  class  is  to  be  ascertained  as  of  a  date  prior 
to  testator's  death,  if  a  member  of  the  class,  as- 
certained as  of  that  date,  subsequently  dies  before  the 
testator,  his  share,  it  seems,  does  not  lapse,  but  the 
survivors  take  the  whole.^'^  In  the  case  of  such  a 
gift  to  a  class,  the  survivors  take  the  whole,  by  reason 
of  a  construction  of  the  language  used  in  the  will  as 
indicating  an  intention  that  the  beneficiaries  of  the 
devise  shall  be  those  members  of  the  class  who  survive 
the  testator,  and  it  is  accordingly  somewhat  difficult  to 
see  the  applicability  to  such  a  case  of  a  statute  intended 
to  prevent  lapse.  It  has  accordingly  been  decided,  in 
several  states,  that  the  statutory  provisions  above  re- 
ferred to,  enabling  the  issue  of  a  deceased  devisee  or 
legatee  to  take  in  the  latter 's  place,  do  not  apply  to  a 
devise  or  legacy  to  a  class,^^  but  in  a  greater  number 
these  statutes  have  been  held  to  apply  to  such  a  case, 
in  the  absence  of  a  showing  of  a  diiferent  intention, 
with  the  result  that  the  share  which  w^ould  have  gone  to 
the  deceased  member  of  the  class  passes  to  his  issue."'^ 
These  decisions  appear  ordinarily  to  be  based  on  a 
presumption  that  the  testator,  in  drafting  the  will,  had 
in  mind  the  statute  in  question  and  intended  by  the 
naming  of  a  class,  to  include  issue  of  a  deceased  mem- 
ber thereof.  It  is  also  to  be  observed  that  in  the  states 
in  which  this  view  has  been  adopted,  the  statute  ordi- 

37.  See    1    Jarman,   Wills   312.  415,    29    N.    E.     631;     Strong    v. 

38.  Davie  v.  Wynn,  80  Ga.  Smith,  84  Mich.  567,  48  N.  W. 
673,  6  S.  E.  183;  Craycroft  v.  183;  Jamison's  Executors  v.  Hay, 
Craycroft,  6  Harr.  &  J.  (Md.)  54;  46  Mo.  546;  Wooley  v.  Paxson, 
Trenton  Trust  &  Safe  Deposit  46  Ohio  St.  307;  In  re  Bradley's 
Co.  V.  Sibbitts,  62  N.  J.  Eq.  131,  Estate,  166  Pa.  300,  31  Atl.  96; 
49  Atl.  530;  Olney  v.  Bates,  3  Moore  v.  Dimond,  5  R.  I.  121; 
Drew,    319.  Missionary  Society  v.  Pell,  14  R. 

39.  Rudolph  V.  Rudolph,  207  I.  456;  Jones  v.  Hunt,  96  Tenn. 
HI.    266,    99    Am.    St.    Rep.    211;  369. 

In  re   Nicholson,    115    Iowa,    493,  40.     Billingsley    v.     Tongue,     9 

91    Am.    St.    Rep.    175;    Moses   v.  Md.  575;   Twitty  v.  Martin,  90  N. 

Allen,    81    Me.    268,    17    Atl.    66;  C.   643;    Moss  v.   Helsley,   60  Tex. 

Moore  v.  Weaver,  16  Gray  (Mass.)  426. 
305;  Howland  v.  Slade,  155  Mass. 


§  474]  Transfer  by  Will.  1835 

narily  does  not  provide  that  no  lapse  shall  result  by 
reason  of  the  death  of  a  devise  or  legatee,  nor  refer  to 
the  matter  of  lapse,  but  merely  declares  that  in 
case  of  such  death,  the  issue  of  the  deceased  devisee  or 
legatee  shall  take  in  his  place. 

A  devise  or  legacy  to  one  who  is  dead  at  the  time 
of  the  execution  of  the  will  is  absolutely  void,^^  except 
in  so  far  as  the  rule  in  this  regard  may  have  been 
changed  by  statute.  Such  a  devise  or  legacy  is  some- 
times referred  to  as  lapsing,*^  but  the  expression 
''lapse"  would  seem  to  be  more  properly  confined  to 
the  case  of  a  devise  or  legacy  which  fails  by  reason 
of  some  occurrence  subsequent  to  the  execution  of 
the  will.  Statutes  which  provide  who  shall  take 
in  case  the  devisee  or  legatee  dies  before  the  testa- 
tor have  more  usually  been  applied  regardless  of 
whether  such  death  occurred  before  or  after  the  execu- 
tion of  the  will,^^  though  occasionally  a  ditferent  con- 
struction has  been  adopted.*'^  In  the  case  of  a  devise 
to  a  class  of  persons,  the  question  is,  not  of  the  con- 
struction of  the  statute,  but  rather  of  the  construction 
of  the  language  of  the  testator  as  showing  his  intention^ 
and  the  adoption  of  a  statute  obviating  the  failure  of  a 
devise  by  reason  of  the  death  of  the  devisee  is  no  reason 
for  assuming  that  the  testator  meant  to  include  within 
the  class  named  the  issue  or  heirs  of  a  person  who,  had 
he  been  living  would  have  been  a  member  of  the  class, 
but  who  died  before  the  execution  of  the  will.    This  view 

41.  Baybank  v.  Brooks,  1  Bro.  N.  Y.  194,  2  L.  R.  A.  (N.  S.) 
Ch.  84;  Dildiue  v.  Dildine,  32  580,  5  Ann.  Cas.  239;  Mintner's 
N.  J.  Eq.   78.  Appeal,  40  Pa.  St.  11;  Wildberger 

42.  Cheney  v.  Selman,  71  Ga.  v.  Cheek's  Ex'rs,  94  Va.  517,  27 
384;  Chenault  v.  Chenault,  10  Ky.  S.    E.    441. 

L.  Rep.  840,  9   S.  W.  775,  88  Ky.  43.     BiUingsley     v.     Tongue,     9 

83;     Nutter    v.    Vickery,    64    Me.  Md.  575;  Lindsay  v.  Pleasants,  39 

490;    Bray  v.   Pullen,  84  Me.   185,  N.  C.  320;    Alniy  v.  Jones,   17  R. 

24  Atl.  811;   Guitar  v.  Gordon,  17  I.  265,  12  L.  R.  A.  414;    Suber  v. 

Mo.  408;  Jamison  v.  Hay,  46  Nash.  84  S.  C.  12,  65  S.  E.  947; 
Mo.  546;  Pimel  v.  Betjemann,  183 


1836  Eeal  Peoperty.  [§  474 

has  been  adopted  in  the  majority  of  the  jurisdictions  in 
which  the  question  has  arisen,  including  some  in  which 
the  applicability  of  the  statute  to  the  case  of  an  in- 
dividual donee  who  is  dead  at  the  time  of  the  execution 
of  the  will  is  fully  recognized.^^ 

Effect  of  residuary  clause.     One  result  of  the 

theory  that  a  devise  of  land  was  a  present  conveyance  of 
the  land,  and  of  the  rule  that  a  will  did  not  pass  after- 
acquired  land,*^^  was  that  a  residuary  devise  of  land, 
however  general  in  its  terms,  was  in  its  nature  specific, 
as  operating  only  on  such  land  as  the  testator  owned 
at  the  time  of  executing  the  will  and  did  not  devise  to 
another  person,  and  was  equivalent  to  a  devise  of  such 
land  by  name  or  specific  description.  Consequently, 
although  a  devisee  of  specific  land  in  the  will  died  before 
testator,  causing  a  ''lapse"  of  the  devise,  the  land 
could  not  pass  under  the  residuary  devise,  but  descended 
to  the  heir,^^  A  ditferent  view  has,  in  one  or  two  cases, 
been  taken  as  to  a  devise  which  was  originally  void, 
as  distinguished  from  one  which  lapsed,  it  being  held 
that  the  property  included  therein  would  pass  under  a 
residuary  clause,  on  the  theory  that  the  devise  being  a 
nullity  from  the  beginning,  the  property  must  be  re- 
garded as  part  of  the  residuum.*® 

44.  Davie  V.  Wynn,  80  Ga.  673,  1  Jarman,  Wills  609;  Johnson  v. 
6  S.  E.  183;  In  <re  Nicholson,  115  Hollfield,  82  Ala.  123,  2  So.  753; 
Iowa,  493,  91  Am.  St.  Rep.  175,  Deford  v.  Deford,  36  Md.  168; 
88  N.  W.  1064;  Howiand  v.  Prescott  v.  Prescott,  7  Mete. 
Slade,  155  Mass.  415,  29  N.  E.  (Mass.)  141;  Kip  v.  Van  Cort- 
631;  Pimel  v.  Betjemann,  183  N.  laud,  7  HiU  (N.  Y.)  34G;  Holton 
Y.  194,  2  L.  R.  A.  (N.  S.)  580,  v.  Jones,  133  N.  C.  399;  Wil- 
5  Ann.  Cas.  239;  In  re  Harrison,  Hams  v.  Neff,  52  Pa.  St.  326; 
202  Pa.  St.  331,  51  Atl.  976.  Stonestreet  v.  Doyle,  75  Va.  356, 
Contra,  Nutter  v.  Vickery,  64  Me.  40    Am.    Rep.    731. 

490;    Moses  v.  Allen,  81  Me.   268,  46.     Doe,  Lessee  of  Stewart,  v. 

17  Atl.   66;    Guitar  v.  Gordon,   17  Sheffield,   13   East,   526,   534;    Doe 

Mo.    408;    Jameson    v.    Hays,    46  d.  Ferguson  v.  Roe,  1  Har.  (Del.) 

Mo.    546.  524,    528.     That   no    such    distinc- 

44a.     Ante,   §   466,  note   6.  tion  between  void  and  lapsed  de- 

45.  Williams,    Real    Prop,    251,  vises  exists,  see  1  Jarman,  Wills, 


<§  475]  Transfer  by  Will.  1837 

The  rule  that  a  residuary  devise  will  not  operate 
upon  land  included  in  a  devise  which  has  lapsed  or  has 
otherwise  failed  has  heen  changed  in  England  by  the 
provision  of  the  Wills  Act  that,  unless  a  contrary  inten- 
tion ajjpears  from  the  will,  real  estate  comprised  in  any 
void  or  lapsed  devise  shall  be  included  in  the  residuary 
devise.^ ^  There  is  a  substantially  similar  jirovision  in 
a  number  of  states  in  this  country/^  The  operation  of 
such  a  statute  is,  however,  much  restricted  by  the  stat- 
utes previously  referred  to,  naming  persons  to  take  in 
case  of  the  death  of  the  devisee  named. 

Even  in  the  absence  of  a  statute  expressly  making 
the  residuary  devise  operative  upon  land  included  in  a 
lapsed  devise,  the  courts  of  a  number  of  states  have 
held  that,  since  the  passage  of  the  statutes  making  a 
will  j)ass  after-acquired  realty,  the  reason  for  treating 
the  residuary  devise  as  a  specific  provision  no  longer 
exists,  and  that  consequently  it  covers  all  land  included 
in  a  devise  which  has  lapsed  or  become  void.^'*  In  some 
states,  however,  a  diiferent  view  has  been  taken,  it 
being  held  that  such  a  statute  as  to  after-acquired  prop- 
erty does  not  cause  land  included  in  a  lapsed  devise  to 
pass  under  the  residuary  clause. ^^ 

§  475.  The  revocation  of  a  will.  xV  will  remains 
subject  to  revocation  by  the  testator  at  any  time.  Such 
revocation   may   be   effected  either   by   cancellation   or 

610,    note;     Lingan    v.    Carroll,    3  Wellington,   9  Allen    (Mass.)    283, 

Har.     &    McH.     (Md.)     333,    338;  296;     Molineaux    v.    Raynolds,    55 

Deford    v.    Deford,    36    Md.     168,  N.  J.  Eq.  187,  36  Atl.  276;   Cruik- 

179.  shank    v.    Home    for    Friendless, 

47.  7  Wm.  IV.  and  1  Vict.  c.  113  N.  Y.  337,  4  L.  R.  A.  140,  21 
26,  §  25;  2  Woerner,  Administra-  N.  E.  64;  Albany  Hospital  v. 
tion,    §    438.  Hanson,    214    N.    Y.    435,    108    N. 

48.  1    Stirason's   Am.    St.   Law,  E.   812. 

§   2822.  50.     Massey's  Appeal,  88  Pa.  St. 

49.  In  re  Upham's  Estate,  127  470;  Rizer  v.  Perry,  58  Md.  112. 
Cal.  90,  59  Pac.  315;  Drew  v.  See  2  Woerner,  Administration,  § 
Wakefield,  54  Me.  291;    Thayer  v.  438. 

2  R.  P.— 41 


1838  Eeal  Peoperty.  [§  475 

destruction  of  the  will,  or  by  the  execution  of  another 
testamentary  instrument,  expressly  revoking  the  for- 
mer will  or  making  an  inconsistent  disposition  of  the 
property.  The  Statute  of  Frauds  provides  that  no 
devise  in  writing  of  lands,  tenements,  or  hereditaments, 
or  any  clause  thereof,  shall  be  revocable  otherwise  than 
by  some  will  or  codicil  in  writing,  or  other  writing  de- 
claring the  same,  signed  in  the  presence  of  three  or  four 
witnesses,  or  by  burning,  canceling,  tearing,  or  oblitera- 
ting the  previous  will,"*^     In  this  country  the  statutory 

provisions  are  usually  of  a  substantially  similar  charac- 
ter.^2 

By  cancellation  or  destruction  of  the  instru- 


ment. In  order  that  a  will  be  revoked  by  cancellation 
or  destruction,  it  is  necessary  that  the  act  be  done  with 
the  intention  of  revoking  the  will,  animo-  revocandi,  as 
it  is  expressed.^^  Consequently,  the  destruction  of  the 
will  by  accident,^*  or  by  mistake,^^  as  when  the  testator 
wrongly  believes  it  to  be  invalid,^''  or  during  the  in- 
sanity of  the  testator,^'^  does  not  revoke  it.  On  the 
other  hand,  the  mere  intention  to  revoke  is  insufficient 
unless   accompanied   by   some   act   constituting   a  legal 

51.  29  Car.  II,  c.  3,  §  6.  See  relative  revocation,  post,  this  sec- 
Swinton    v.    Bailey,    4    App.    Cas.      tion,  notes  70-73. 

70.  56.       Giles  v.  Warren,  L.  R.  2 

52.  1    Stimson's   Am.    St.   Law,      Prob.    &    Div.    401. 

§§   2672,  2673.  57.     Rich  v.  Gilkey,  73  Me.  595; 

53.  1  Jarman,  Wills,  118;  1  Brunt  v.  Brunt,  L.  R.  3  Prob.  & 
Woerner,  Administration,  §  48.  Div.  37;  Lang's  Estate,  65  Cal. 
The  statute  frequently  contains  19;  Sprigge  v.  Sprigge,  L.  R.  1 
a  provision  to  this  effect.  1  Stim-  Prob.  &  Div.  608;  Forbing  v. 
son's  Am.   St.   Law,   §  2672(C).  Weber,    99    Ind.    588;    Delafield   v. 

54.  Burtenshaw  v.  Gilbert,  Parish,  25  N.  Y.  9.  In  Billington 
Cowp.  52;  Burns  v.  Burns,  4  Serg.  v.  Jones,  108  Tenn.  234,  91  Am. 
&  R.  (Pa.)  295.  See  Lord's  Es-  St.  Rep.  751,  56  L.  R.  A.  654, 
tate,   106   Me.   51,   75   Atl.    286.  it  was  held   that,   in  the   absence 

55.  Strong's  Appeal,  79  Conn.  of  a  statute  fixing  the  mode  of 
123,  6  L.  R.  A.  (N.  S.)  1107;  revocation,  the  writing  in  pencil, 
Semmes  v.  Semmes,  7  H.  &  J.  below  the  signature,  of  a  state- 
(Md.)   388.     See,  as  to  dependent  ment  that  the  will  was  null  and 

void,  was  sufficient. 


§  475]  Teansfee  by  Will.  lg;^9 

revocation,^^  and  it  is  immaterial  that  the  testator 
wrongly  supposes  that  the  will  has  been  destroyed  as 
directed   by   him.^*^ 

The  act  of  destruction,  whether  by  burning,  tearing, 
or  other  means,  must,  to  constitute  a  revocation,  be  car- 
ried through  to  its  end,  and  consequently,  if  the  testator 
desists  from  his  purpose  after  having  partly  torn  or 
destroyed  the  instrument,  there  is  no  revocation,  pro- 
vided he  would  have  made  the  act  more  complete  had  he 
i]ot  changed  his  mind.^'^  A  partial  destruction  is 
sufficient,  however,  if  the  testator  supposed  that  the 
act  was  carried  far  enough  for  the  purpose,  and  the 
preservation  of  the  will  in  its  mutilated  condition  by  a 
third  person  will  not  affect  the  validity  of  the  revoca- 
tion.^^ 

In  a  considerable  number  of  states  it  is  provided 
that  the  cancellation  or  destruction  of  the  will  which 
effects  its  revocation  may  be  the  act  of  a  third  person 
as  well  as  of  the  testator  himself,  provided,  ordinarily, 
this  is  by  the  testator's  direction  and  in  his  presence, 
and  in  some  states  the  fact  of  destruction  with  the 
testator's  consent  must  be  proven  by  at  least  two  wit- 
nesses. 

The  cancellation  or  destruction,  animo  revocandi, 
of  any  essential  part  of  the  will,  has  the  effect,  unless 
the  statute  otherwise  provides,"^  of  revoking  the  will,  as 

58.  Mundy  v.  Mundy,  15  N.  J.  C.  139,  51  Am.  Dec.  204;   Clingau 
Eq.  290;   Hoitt  v.  Hoitt,  63  N.  H.  v.   Micheltree,    31   Pa.    Si.    25. 
475;    Kent    v.    Mahaffey,    10    Ohio  60.     Doe  d.  Perkes  v.  Perkes,  3 
St.    204;    Delafield    v.    Parish,    25  Barn.  &  Aid.  489;  Elms  v.  Elms,  1 
N.   Y.    9.      So    in    Doe   d.   Reed   v.  Swab.    &   Tr.    155. 

Harris,  6  Add.  &  E.  209,   it  was  61.     Hibb  v.  Thomas.   2   W.    U\. 

decided    that    throwing    the    will  1043;     Sweet    v.    Sweet,    1     Re6L 

on  the  fire,  if  it  was  snatched  off  Surr.     (N.     Y.)     451;     White     v. 

by    another    person    before    more  Casten,  46  N.  C.  197,  59  Am.  Dec. 

than  the  envelope  was  singed,  did  585;    Lawyer    v.    Smith,    8    Mich, 

not    constitute    a    revocation.  411. 

59.  Trice   v.    Shipton,    113    Ky.  62.     Gay   v.  Cay,   60    Iowa,   415, 
102,   101   Am.   St.   Rep.   351,   67   S.  46    Am.    Rep.    78. 

W.    377:    TTise    v.    Fincher,    32   N. 


1840 


Eeal  Peopekty. 


[§  475 


when  the  signature  is  scratched  or  erased,^^  or  so  much 
of  the  paper  as  contains  the  signature  is  torn  off,^* 
or  the  seal  is  destroyed.''^ 

In  some  jurisdictions  the  statute  expressly  author- 
izes the  revocation  of  a  particular  clause  of  the  will 
by  cancellation  or  obliteration,  without  affecting  the 
balance  of  the  will.  Whether,  in  the  absence  of  an 
express  recognition  in  the  statute  of  such  a  right  of 
partial  revocation,  the  statute  should  be  regarded  as 
authorizing  it,  is  a  question  as  to  which  the  statutes 
have  been  differently  construed.^^  But  even  though  a 
right  of  partial  revocation  by  cancellation  or  oblitera- 
tion is  recognized,  this  does  not  involve  a  right,  by  can- 
celling or  obliterating  some  of  the  words  of  a  will,  to 
make  a  new  and  different  testamentary  disposition,  this 


63.  Olmstead's  Estate,  122  Cal. 
224,  54  Pac.  745;  WoodfiU  v.  Pat- 
ton,  76  Ind.  575,  40  Am.  Rep. 
269;  Townshend  v.  Howard,  86 
Me.  285,  29  Atl.  1077;  Semmes  v. 
Semmes,  7  Har.  &  J.  (Md.)  388; 
In  re  White's  Will,  25  N.  J.  Eq. 
501;  Evans'  Appeal,  58  Pa.  St. 
238. 

64.  Bell  V.  Fothergill,  L.  R. 
2  Prob.  &  Div.  148;  Sanders' 
Adm'r  v.  Babbitt,  106  Ky.  646,  51 
S.  W.  163;  Whitehead  v.  Kirk, 
104  Miss.  776,  51  L.  R.  A.  (N.  S.) 
187,  Ann.  Cas.  1916A,  1051,  61 
So.  737,  62  So.  432;  Smock  v. 
Smock,  11  N.  J.  Eq.  156;  Cutler 
V.  Cutler,  130  N.  C.  1,  57  L.  R.  A. 
209,  89  Am.  St.  Rep.  854,  40  S.  E. 
689;  That  the  signature  was  torn 
"through"  has  been  regarded  as 
creating  a  presumption  of  revo- 
cation. In  re  Wellborn's  Will, 
165  N.  C.  636,  81  S.  E.  1023. 

65.  This  is  so,  even  though 
the  seal  is  not  necessary  to  the 
validity    of    the    will.      Price    v. 


Powell,  3  Hurl.  &  N.  341;  Avery 
V.  Pixley,  4  Mass.  460.  See  In  re 
White's   Will,  25   N.  J.   Eq.   501. 

66.  That  such  a  partial  revoca- 
tion may  be  effected,  see  Miles' 
Appeal,  68  Conn.  237,  36  L.  R.  A. 
176;  Brown's  Will,  1  B.  Mon. 
(Ky.)  56;  Townshend  v.  Howard, 
86  Me.  285,  29  Atl.  1077;  Safe 
Deposit  &  Trust  Co.  v.  Thorn. 
117  Md.  154,  83  Atl.  45;  Bigelow 
V.  Gillott,  123  Mass.  102,  25  Am. 
Rep.  32;  Michigan  Trust  Co.  v. 
Fox,  192  Mich.  699,  159  N.  W. 
332;  Re  Kirkpatrick,  22  N.  J.  Eq. 
463;  Barfield  v.  Carr,  169  N.  C. 
574,  86  S.  E.  498;  In  re  Wood's 
Estate,  247  Pa.  377,  93  Atl.  483; 
Brown  v.  Brown,  91  S.  C.  101,  74 
S.  E.  135.  That  it  cannot,  see 
Law  V.  Law,  83  Ala.  432,  3  So. 
752;  Lovell  v.  Quitman,  88  N. 
y.  377,  42  Am.  Rep.  254;  Giffin 
V.  Brooks,  48  Ohio  St.  211,  31 
N.  E.  734;  Hartz  v.  Sobel,  136  Ga. 
565,   71    S.   E.    995. 


§  475]  Transfer  by  Will.  1841 

involving,  not  the  mere  revocation  of  a  will,  but  the 
making  of  a  will.*^^ 

In  case  the  will  of  a  decedent,  which  he  is  known 
to  have  made,  and  of  which  he  retained  the  custody,  can- 
not be  found,  it  is  presumed  to  have  been  destroyed  by 
him  with  the  intention  of  revoking  it.^^  This  pre- 
sumption may,  however,  be  rebutted  by  evidence  to  the 
contrary,  as  when  it  is  shown  that  there  was  no  change 
in  the  testator's  desire  to  benefit  the  persons  named  in 
the  will,  or  circumstances  appear  calculated  to  raise 
a  suspicion  that  the  will  was  wrongfully  destroyed  by 
a  person  other  than  testator.^^ 

Dependent   relative   revooation.      ''Where   the 

act  of  destruction  is  connected  with  the  making  of  an- 
other will,  so  as  fairly  to  raise  the  inference  that  the 
testator  meant  the  revocation  of  the  old  to  depend 
upon  the  efficacy  of  the  new  disposition  intended  to  be 
substituted,  such  will  be  the  legal  eifect  of  the  transac- 
tion ;  and  therefore,  if  the  will  intended  to  be  substituted 
is  inoperative  from  defect  of  attestation  or  any  other 
cause,  the  revocation  fails  also,  and  the  original  will 
remains  in  force.""''  This  principle  of  "dependent 
relative"  revocation,  as  it  is  termed,  has  been  applied  in 
the  case  of  the  cancellation  of  clauses  in  tlie  will  by 

67.  Miles' Appeal,  68  Conn.  237,  N.  C.  135,  3  S.  E.  719;  Jackson 
36  L.  R.  A.  176,  36  Atl.  39;  v.  Hewlett,  114  Va.  573,  77  S. 
Eschbach  v.  Collins,  61  Md.  478;  E.  518;  Harris  v.  Harris,  10 
Gardner  v.  Gardiner,  65  N.  H.  Wash.  555;  See  note  28  Am.  St. 
230,  8   L.  R.  A.   383,  19  Atl.   651.  Rep.   at   p.    347;    Schouler,    Wills, 

68.  Griffith  v.  Higinbotom,  262  §   402. 

111.    126,   104   N.   E.   233;    Idley   v.  70.     1  Jarman,  Wills,  119;    See, 

Bowen,    11    Wend.    (N.    Y.)    227;  also,    1   Williams,   Executors    (9th 

Knapp   V.    Knapp,    10    N.    Y.    276;  Ed.)  126  et  scq.;  Onions  v.  Tyrer, 

Foster's    Appeal,    87    Pa.    St.    67;  2    Vern.    742;    Mclntyre   v.    Mcln- 

Harris   v.   Harris,   10   Wash.    555;  tyre,  120  Ga.  67.  102  Am.  St.  Rep. 

In    re    Valentine's    Will,    93    Wis.  71,    1    A.    &    E.    Ann.    Cas.    606; 

46,   67  N.  W.   12..  Thompson's   Appeal,   114   Me.   338, 

69.  Patten  v.  Poulton,  1  Swab.  96  Atl.  238;  and  article  by  Ar- 
&  Tr.  55;  Schiiltz  v.  Schultz,  35  mislead  M.  Uobie,  Esf|.  2  Virginia 
N.  Y.  653;   Scoggins  v.  Turner,  98  Law  Rev.  327. 


1842  Keal  Peoperty.  .        [§  ^''^ 

testator  with  the  intention  of  substituting  other  clauses, 
but  without  re-executing  the  will  after  making  such  al- 
terations, and  the  cancellation  has  been  held  to  be 
nugatory  as  a  revocation.'^ ^  The  same  doctrine  was 
held  to  apply  when  the  testator  destroyed  a  will  under 
the  mistaken  impression  that  a  i3revious  will  would 
be  thereby  validated,  and  with  the  intention  of  setting 
up  such  former  disposition^^  The  fact,  however,  that 
the  act  of  destruction  is  accompanied  by  an  intention  to 
make  another  will  in  the  future  cannot  prevent  such  act 
from  operating  as  a  revocation."^^ 

Subsequent  will.     As  stated  above,  a  will  can 

ordinarily,  by  force  of  the  statute,  be  revoked  by  a  sul> 
sequent  writing  only  when  such  writing  is  executed  as  a 
will.'^^  Such  revocation  may  result  either  from  the 
language  of  the  later  instrument  revoking  the  earlier 
will,  or  the  later  will  may  make  a  disposition  of  testa- 
tor's property,  or  part  thereof,  inconsistent  with  the 
earlier  disposition."^^    If  the  second  will  neither  in  terms 

71.  Winsor  v.  Pratt,  2  Brod.  &  words  written  upon  another  part 
B.  650;  Wolf  v.  Bollinger,  G2  111.  of  the  paper,  to  the  effect  that 
368;  Doane  v.  Hadlock,  42  Me.  the  will  is  ^evoked  or.  "cancell- 
72;  Wilbourn  v.  Shell,  59  Miss,  ed,"  though  signed  by  the  testa- 
205;  Gardner  v.  Gardiner,  65  N.  tor,  do  not  revoke  the  will, 
H.  230,  8  L.  R.  A.  383,  19  Atl.  unless  witnessed  as  required  in 
651;  In  re  Penniman's  Will,  20  the  case  of  a  will.  Howard  v. 
Minn.  245  (Gil.  220),  18  Am.  Rep.  Hunter,  115  Ga.  357,  90  Am.  St. 
368.  Rep.  121,  41  S.  E.  638;   Matter  of 

72.  Powell  V.  Powell,  L.  R.  1  Akers,  74  N.  Y.  App.  Div.  461, 
Prob.  &  Div.  209.  77  N.  Y.  Supp.  643,  173  N.  Y.  620, 

73.  Olmstead's  Estate,  122  Cal.  06  N.  E.  HOP.;  Lewis  v.  Lewis,  2 
224,  54  Pac.  745;  Mclntyre  v.  Watts  &  S.  (Pa.)  455;  Ladd's 
Mclntyre,  120  Ga.  67,  102  Am.  St.  Will,  60  Wis.  187;  Matter  of  Gos- 
Rep.  71,  1  A.  &  E.  Ann.  Cas.  ling,  11  Prob.  &  Div.  79.  But  see 
606;  Townsheni  v.  Howard,  86  Evans'  Appeal,  58  Pa.  St.  238; 
Me.  285,  29  Atl.  1077;  Semmes  v.  Billington  v.  Jones,  108  Tenn.  234, 
Semmes,  7  Har.  &  J.  (Md.)  388;  56  L.  R.  A.  654,  91  Am.  St.  Rep. 
Brown  v.  Thorndike,  15  Pick.  751;  Warner  v.  Warner,  37  Vt. 
(Mass.)    388;    Banks   v.   Banks,  65  356. 

Mo.    432.  75.     1  Jarman,  Wills,  139;  Bige- 

74.  1  Stimson's  Am.  St.  Law,  §      low,  Wills.  136. 
2673.      So   it   has   been    held    that 


§  475] 


Tkansfee  by  Will. 


184J 


revokes  the  previous  will  nor  is  inconsistent  therewith, 
then  both  are  in  force,  the  later  being-  in  effect  a  codicil 
to  the  former  instrument,'^«  and,  if  the  later  will  is  only 
partially  inconsistent  with  the  earlier  will,  the  latter 
remains  in  force  in  other  respects.'^  The  subsequent 
will  may  contain  no  provision  other  than  that  revokin.x^ 
the  earlier  will,'^  and  it  has  the  effect  of  revocation  if 
it  so  provides,  although  the  attempted  disposition  there- 
in of  the  testator's  property  is  for  some  reason  invalid.'^^ 

The  contents  of  a  lost  will  may  be  shown  for  the 
purpose  of  establishing  the  revocation  of  a  previous 
will.^^  But  the  mere  fact  of  the  execution  of  a  later 
will  without  evidence  as  to  its  contents,  is  not  sufficient 
to  show  a  revocation.^^ 

A  revocation  by  a  will  or  codicil  of  a  previous  dis- 
position of  property  is  invalid  if  expressly  made  upon 
an  assumption  of  fact  which  turns  out  to  be  mistaken.^^ 
But  the  fact  that  the  revocation  was  the  result  of  mis- 


76.  1  Jarman,  Wills,  139;  In 
re  Dunabaugh,  130  Iowa,  692,  107 
•  N.  W.  925;  Deppen's  Trustee  v. 
Deppen,  132  Ky.  755,  117  S.  W. 
352;  Lane  v.  Hill,  68  N.  H.  275, 
73  Am.  St.  Rep.  591,  44  Atl.  393; 
Smith  V.  McChesney,  15  N.  J.  Eq. 
359;  Wetmore  v.  Parker,  52  N. 
Y.  450;  In  re  Venable's  Will,  127 
N.  C.  344,  37  S.  E.  465;  Gordon 
V.  Whitlock,  92  Va.  723,  24  S.  E. 
342. 

77.  Freeman  v.  Freeman,  5  De 
Gex.  M.  &  G.  704;  Lemage  v. 
Goodban,  L.  R.  1  Prob.  &  Div. 
57;  Kelly  v.  Richardson,  100  Ala. 
584,  13  So.  785;  In  re  DeLavea- 
ga's  Estate,  119  Cal.  651;  Wil- 
liams V.  Miles,  68  Neb.  463,  110 
Am.  St.  Rep.  431,  62  L.  R.  A. 
383,  4  A.  &  E.  Am.  Caa.  306; 
Wetmore  v.  Parker,  52  N.  Y.  450; 
Price  V.  Maxwell,   28   Pa.   St.   23. 

78.  Barksdale    v.    Hopkins,    23 


Ga.     332;     Bayley     v.     Bailey,     5 
Gush.    (Mass.)    245. 

79.  Ex  parte  Ilchester,  7  Ves. 
348,  373;  Burns  v.  Travis,  117 
Ind.  44,  18  N.  E.  45;  Dudley  v. 
Gates,  124  Mich.  440,  83  N.  W. 
97,  86  N.  W.  959;  In  re  Scott,  88 
Minn.  386,  93  N.  W.  109:  Hairston 
V.  Hairston,  30  Miss.  276;  Morey 
V.  Sohier,  63  N.  H.  507.  56  Am. 
Rep.  538,  3  Atl.  636;  In  re  Mel- 
ville's Estate.  245  Pa.  318,  91  Atl. 
679. 

80.  Caeman  v.  Van  Harke,  33 
Kan.  333,  6  Pac.  620;  Wallis  v. 
Wallis,   114   Mass.   510. 

81.  Hitchins  v.  Basset.  2  Salk. 
592;  Kern  v.  Kern,  154  Ind.  29, 
55  N.  E.  1004;  In  re  Sternberg's 
Estate,  94  Iowa,  305.  62  N.  W. 
734;  Williams  v.  Miles.  68  Neb. 
463.  94  N.  W.  705.  96  N.  W.  151; 
Lane  v.  Hill.  68  N.  II.  275,  73  Am. 
St.   Rep.   591, 


1844  Real  Property.  [§  475 

take  cannot  be  shown  by  evidence  extrinsic  to  the 
will,^^  and  it  has  been  held  that  even  a  mistake  apparent 
in  the  will  does  not  defeat  the  revocation  if  it  is  not 
based  on  information  received  from  others,  but  the 
matter  is  within  the  personal  knowledge  of  testator.'^^  A 
revocation,  moreover,  which  is  stated  to  be  based  upon 
certain  advice  given  testator,  has  been  supported,  though 
the  advice  was  mistaken,  since  it  was  the  advice  on  which 
testator  acted,  and  as  to  his  receipt  of  the  advice  there 
was  no  mistake.*'^ 

Marriage   and   birth   of   issue.     The   common 


law  rule  was  that  the  will  of  a  man  is  not  revoked  by 
his  marriage  alone, ^^  and  this  rule  still  controls  in 
some  states.  In  others  the  statutes  changing  the  com- 
mon-law rights  of  a  married  woman  as  regards  her  in- 
terest in  her  husband's  estate  on  his  death  without  issue 
have  been  regarded  as  changing  the  rule,  so  as  to  give  to 
his  marriage  the  effect  of  revoking  his  will,^''^"**  and  oc- 
casionally there  is  a  statutory  provision  expressly  to 
that  effect.89 

82.  CampbeU  v.  French,  3  Ves.  bell's  Ex'r,  19  Grat.  (Va.)  758. 
321,  where  the  revocation  of  a  86.  1  Jarman,  Wills,  111. 
provision  in  favor  of  certain  per-  87-88.  Brown  v.  Scherrer,  5 
sons,  "they  being  all  dead,"  was  Colo.  App.  255,  21  Colo.  481;  Mor- 
held  to  be  inoperative,  they  being  gan  v.  Ireland,  1  Idaho,  786; 
alive.  See  also  Doe  d.  Evans,  10  Tyler  v.  Tyler,  19  111.  151;  Ameri- 
Adol.  &  El.  228;  Mordecai  v.  can  Board  of  Com'rs  for  Foreign 
Boylan,  59  N.  C.  365;  and  a  sug-  Missions  v.  Nelson,  72  111.  564; 
gestive  editorial  note  in  22  Harv.  In  re  Teopfer,  12  N.  Mex.  372,  67 
Law  Rev.  at  p.  374.  L.  R.   A.   315.     Contra,  Goodsell's 

83.  Dunham  v.  Averill,  45  Appeal,  55  Conn.  171,  10  Atl.  557; 
Conn.  61,  29  Am.  Rep.  642;  Hayes  Hulett  v.  Carey,  66  Minn.  327,  34 
V.  Hayes,  45  N.  J.  Eg.  461,  17  L.  R.  A.  384,  61  Am.  St.  Rep.  419; 
Atl.  634;  Gifford  v.  Dyer,  2  R.  Hoitt  v.  Hoitt,  63  N.  H.  475,  56 
L   99;    Skipwith  v.   Cabell's  Ex'r,  Am.  Rep.  530,  3  Atl.  604. 

19   Gratt.    (Va.)    758.  89.     See   In   re   Anderson's    Es- 

84.  Mendinhall's  Appeal,  124  tate,  14  Ariz.  502,  131  Pac.  975; 
Pa.  St.  387,  10  Am.  St.  Rep.  590.  In   re   Cutting's    Estate,    172    Cal. 

85.  Attorney  General  v.  Lloyd,  191,  Ann.  Cas.  1917D,  1171,  155 
1  Ves.  Sr.  32;  Newton  v.  Newton,  Pac.  1002;  In  re  Roton's  Will,  95 
12    Ir.    Ch.    118;    Skipwith   v.    Ca-  S.  C.  118,  78  S.  E.  711;  Koontz  v. 


§  475]  Tkansfee  by  Will.  1845 

At  coniinoii  law,  the  marriage  of  a  woman  revokes 
her  will,  for  the  reason,  it  is  said,  that,  since  the  mar- 
riage destroys  her  right  to  make  or  revoke  a  will,  if 
marriage  did  not  in  itself  cause  a  revocation,  the  will 
would  stand  as  a  permanent  disposition  of  her  prop- 
gP^y  90  rpj^-g  ^.^^|g  -g  ^  positive  rule  of  law,  and  evidence 
is  not  admissible  to  show  a  contrary  intention  on  the 
part  of  testatrix.*^  ^  In  several  states  it  has  been  held 
that  this  rule  does  not  apply  when  the  common-law  re- 
striction upon  the  right  of  a  married  woman  to  make 
a  will  no  longer  exists.^^  An  express  statutory  provision 
in  accordance  with  the  common-law  rule  has,  however, 
been  held  not  to  be  impliedly  repealed  by  a  statute  giv- 
ing testamentary  capacity  to  married  women  f^  and  the 
common-law  rule  has  been  regarded  as  confirmed  by  a 
provision,  in  the  statute  regarding  the  revocation  of 
wills,  that  nothing  therein  contained  shall  prevent  the 
revocation  implied  by  law  from  subsequent  changes  in 
the  condition  or  circumstances   of  the  testator.^* 

By  the  common-law  rule,  generally  recognized  as  in 
force  in  this  country,  in  the  absence  of  a  statutory 
change,  the  marriage  of  a  man,  if  followed  by  the  birth 
of  a  child,  revokes  his  will  previously  made/'^    This  rule 

Koontz,    83    Wash.    180,    145    Pac.  173,    54    Am.    Rep.    329;    Kelly    v. 

201.  Stevenson,  85  Minn.  247,  56  L.  R. 

90.  1  .Tarman,  Wills,  110;  A.  754,  89  Am.  St.  Rep.  545: 
Hodsden  v.  Lloyd,  2  Brown  Ch.  Fellows  v.  Allen,  60  N.  H.  439,  49 
534;  Garrett  v.  Dabney,  27  Miss.  Am.  Rep.  329;  Webb  v.  Jones, 
335.  So  by  statute  in  a  number  36  N.  J.  Eq.  163;  Morton  v.  Onion, 
of  states.  1  Stimson's  Am.  St.  45  Vt.  145;  In  re  Lyons,  96  Wis. 
Law,  §  2676(A).  339,  65  Am.   St.  Rep.  52;    Contra. 

91.  Nutt  V.  Norton,  142  Mass.  Swan  v.  Hammond,  138  Mass.  45. 
242,  7  N.  E.  720;  Hoitt  v.  Hoitt,  93.  Brown  v.  Clark.  77  N.  Y. 
63  N.  H.  475,  56  Am.  Rep.  530,  3  369;  In  re  Kaufman's  Will,  131 
Atl.  604.  N.  Y.   620. 

92.  In  ire  Tuller's  Will,  79  111.  94.  Shorten  v.  .ludd,  60  Kan. 
99,  22  Am.  Rep.  164;  In  re  Emery,  73,  57  Pac.  938;  Swan  v.  Ham- 
81  Me.  275,  17  Atl.  68;  Roane  v.  mond,  138  Mass.  45;  In  re  Booth's 
Hollingshead,  76  Md.  ;!69,  35  Am.  Will,  40  Ore.  154,  61  Pac.  Ii;t5.  66 
St.    Rep.    438,    17    L.    R.    A.    592;  Pac.   710. 

Noyes    v.    Southworth,    55    Mich.  95.     1      Jarman,      Wills,      110; 


1846  Eeal  Peoperty.  [§  475 

is  based,  it  is  said,  upon  a  tacit  condition,  annexed  to 
the  will,  that,  in  case  of  snch  a  total  change  in  testator's 
circumstances,  the  will  shall  be  void,'''''  and  consequently 
evidence  of  a  contrary  intention  on  the  part  of  the  testa- 
tor is,  by  the  weightiest  decisions,  not  admissible.'*'^ 
The  rule  that  marriage  and  birth  of  issue  revokes  the 
will  does  not,  however,  apply  if  the  future  wife  and  the 
issue  of  the  marriage  are  provided  for  by  the  will,''^  and 
occasionally,  by  statute,  a  provision  for  the  issue  alone 
is  sufficient  to  prevent  its  application.'*'' 

The  birth  of  a  child  does  not,  apart  from  statute, 
affect  a  man's  previous  disposition  of  his  property  by 
will.i 

There  are  in  most  of  the  s rates  express  statutory 
provisions  as  to  the  effect  of  marriage  or  birth  of  issue 
in  revoking  a  will.  In  some  states  a  will  is  revoked  by 
marriage  and  birth  of  issue,  unless  provision  for  such 
issue  is  made  in  the  w^ill  or  by  settlement,  or  they  are  in 
such  way  mentioned  in  the  will  as  to  show  an  intention 
not  to  provide  for  them.  In  several  states  the  marriage 
alone  of  the  testator  revokes  the  will,  subject,  in  some 

Christopher     v.      Christopher,      2  v.    Hoitt,    63    N.    H.    475,    56    Am. 

Dickens,    445.  Rep.     530,     3    Atl.     604.      Contra, 

In  New  Hampshire  it  lias  been  Wheeler  v.   Wheeler,  1  R.  I.   364. 

held  that  the  marriage  and  birth  98.     Kenebel      v.      Scrafton,      2 

of  Issue  no   longer   effect  a  revo-  East,     530;     Marston    v.     Roe,     8 

cation,    in    view    of    the    statute  Adol.  &  E.  14;    Warner  v.  Beach, 

which  gives  to  a  widow  and  child  4   Gray    (Mass.)    162;    Baldwin  v. 

not  provided   for   in  the  will  the  Spriggs,  65  Md.  373,  5  Atl.  295. 

same    share    as    if    decedent    had  99.     1    Stimson's  Am.    St.   Law, 

died  intestate.     Hoitt  v.  Hoitt,  63  §  2G76(C). 

N.  H.  498.  1.     Doe  d.  White  v.  Barford,  4 

96.  Kenebel  v.  Scrafton,  2  East,  Maule  &  S.  10;  GoodseU's  Appeal 
530;  Baldwin  v.  Spriggs,  65  Md.  from  Probate,  55  Conn.  171, 
373,    5    Atl.    295.  10   Atl.   557;    Swan   v.   Hammond, 

97.  Marston  v.  Roe,  8  Adol.  &  138  Mass.  45;  Brush  v.  Wilkins, 
E.  14;  Chicago,  B  &  Q.  R.  Co.  v.  4  Johns.  Ch.  (N.  Y.)  506.  Con- 
Wasserman  (C.  C.)  22  Fed.  872;  tra,  McCullum  v.  McKenzie,  26 
Baldwin  v.  Spriggs,  65  Md.  37."^,  Iowa,  510;  Negus  v.  N°~us  46 
5   Atl.   295.     See  Nutt  v.  Norton,  lowa,   487,  26  Am.  Rep.  157. 

142  Mass.  242,  7  N.  E.  720;   Hoitt 


§  475]  Transfer  by  Will.  1847 

states,  to  tlie  condition  that  lie  leaves  a  widow  for  whom 
he  does  not  provide  by  marriage  settlement  or  in  the 
will,  or  does  not  so  mention  her  in  the  will  as  to  show  an 
intention  not  to  provide  for  her.  And  in  some  states  a 
will  made  before  the  birth  of  issue,  which  makes  no 
mention  of  possible  issue,  is  in  etfect  revoked  if  the 
testator  leaves  a  cliild.^ 

Aliengtion   of   land.     The   conveyance    by  the 

testator  of  land,  which  would  otherwise  pass  under  a 
will  previously  made,  necessarily  withdraws  such  land 
from  the  operation  of  the  will.^  When  there  is  merely 
a  contract  to  convey,  the  vendor  is,  as  before  stated,^ 
a  trustee  for  the  purchaser,  and  the  legal  title  alone 
passes  under  his  previous  devise  of  the  land,  the  right 
to  the  purchase  money  passing,  in  the  absence  of  stat- 
ute, to  the  personal  representative."^  In  some  states, 
however,  the  statute  provides  that,  on  the  death  of  the 
vendor  of  land,  the  unpaid  purchase  money  shall  pass 
under  the  devise  of  the  land,  in  place,  as  it  were,  of  the 
land.^ 

So  far  as  the  common-law  rule  that  the  will  operates 
only  on  land  owned  by  testator  at  the  time  of  its  execu- 
tion may  still  remain  in  force  in  any  jurisdiction,  the 
reconveyance  to  testator  of  land  conveyed  by  him  after 
the  making  of  the  will  cannot  render  the  will  operative 
as  to  such  land.'^  And,  apart  from  any  change  in  the 
law  brought  about  by  the  modern  statutes,  a  conveyance 
by  the  testator  after  the  making  of  his  will,  otherwise 

2.  1  Stimson's  Am.  St.  Law,  §  Atl.  295,  296;  Skinner  v.  New- 
2676;  1  Woerner,  Administration,  berry,  51  111.  203;  Bruck  v.  Tuck- 
§  55.  See  Shackelford  v.  Wash-  er,  .32  Cal.  426.  See  ante,  §  127. 
burn,  180  Ala.  168,  60  So.  318,  6.  1  Woerner,  Administration. 
43   L.   R.  A.    (N.   S.)    1195.  §  53. 

3.  1  Jarman,  Wills,  129.  7.     1    Jarman,   Wills    (4th    Ed.) 

4.  Ante,   §   125.  147;     Philippe    v.    Clevenger,    239 

5.  1  Jarman,  WiUs,  129,  Wal-  111.  117,  16  A.  &  E.  Ann.  Cas.  207, 
ton  V.  Walton,  7  Johns.  Ch.  (N.  87  N.  E.  858;  Morey  v.  Sohler, 
Y.)  258  11  Am.  Dec.  456;  Bender  63  N.  H.  507,  56  Am.  Rep. 
V.  Luckenbach  1G2  Pa.  St.  18,  29  538. 


1848  Eeai.  Property.  [§  475 

than  by  waj^  of  mortgage, ^  if  it  transfers  the  legal  or 
equitable  title  in  fee  simple,  is  effective  as  a  revocation, 
even  though,  by  the  same  instrument,  the  title  is  im- 
mediately revested  in  him.^  Under  the  statutory  rule 
which  now  prevails  in  England,  and  in  most,  if  not  all, 
of  the  states,  that  the  will  operates  on  such  land  as  the 
testator  has  at  the  time  of  his  death,  a  conversance  by 
testator  after  making  his  will  cannot  prevent  the  opera- 
tion of  the  will  upon  the  land  conveyed,  if  it  is  recon- 
veyed  or  title  is  in  any  way  revested  in  the  testator 
before  his  death ;  and  in  many  jurisdictions  there  is  an 
express  provision  that  a  conveyance  shall  not  prevent 
the  operation  of  the  will  with  respect  to  such  an  estate 
as  testator  has  at  the  time  of  his  death,  unless,  in  some 
states,  the  intention  to  revoke  is  expressed  in  the  con- 
veyance.^" 

A  conveyance  by  a  testator  was  held  in  England,  as 
the  law  formerly  stood,  to  effect  a  revocation  of  a  de- 
vise of  the  land  conveyed,  although  the  conveyance  was 
void,  either  for  want  of  capacity  in  the  grantee,  or  for 
want  of  the  proper  formalities,  on  the  theory,  it  seems 
that  such  an  attempted  conveyance  shows  an  intention 
that  the  devise  shall  never  be  operative. ^^  This  rule 
is  no  longer  in  force  in  England,  for  the  reason,  it  is 
said,  that,  as  a  valid  conveyance  no  longer  effects  a 
revocation  if  the  title  becomes  revested  in  testator,  one 
which  is  invalid  can  have  no  greater  effect.^^  In  this 
country  there  seems  to  be  no  explicit  decision  that  an 

8.  Jackson  v.  Parker,  Ambl.  2  Whart.  (Pa.)  103;  See  Ballard 
687;  Baxter  v.  Dyer,  5  Ves.  Jr.  v.  Carter,  5  Pick."  (Mass.)  112,  16 
656;    McTaggart  v.  Thompson,   14      Am.    Dec.   377. 

Pa.    St.    149.      This    is    by    reason  10.     Wills  Act,   7  Wm.   IV.  and 

of  the  fact  that  a  mortgage  is  in  1    Vict.   c.    26,    §    23;    1    Stimson's 

equity  merely  a  security  or  lien.  Am.  St.  Law,  §  2810. 

9.  Cave  v.  Holford,  3  Ves.  650;  11.  1  Jarman,  Wills  (4th  Ed.) 
Brydges  v.  Chandos,  2  Ves.  Jr.  165;  Mountague  v.  Jecifereys 
417;  Krieg  v.  McComas,  126  Md.  Moore,  429;  Hick  v.  Mors,  Amb. 
377,  95  Atl.  68;  Walton  v.  Walton,  215;  Walton  v.  Walton,  7  Johns. 
7  Johns.  Ch.  (N.  Y.)  258,  11  Ch.  (N.  Y.)  258,  11  Am.  Dec.  456. 
Am.   Dec.   456;    Jones  v.   Hartley,  12.     1  Jarman,  Wills,  133. 


§§  476,  477]  Transfer  by  Will.  1849 

invalid  conveyance  could  in  an}'  case  effect  a  revocation, 
but  there  are  dicta  to  such  an  effect.^-^  And  on  such 
theory,  or  one  analogous  thereto,  a  revocation  has  been 
regarded  as  effected  by  a  conveyance  delivered  on  a 
condition  which  was  never  satisfied.^*  A  conveyance 
which  is  voidable  because  procured  by  fraud  has  in  two 
states  been  decided  not  to  cause  a  revocation.^ ^' 

§  476.  Children  or  issue  omitted  from  will.  In 
most  states  there  is  a  statutory  provision  that,  if  a 
child  living  at  the  testator's  death,  or  who  has  died 
prior  to  such  death  leaving  issue,  was  born  after  the 
execution  of  the  will,  such  child  or  issue  shall  take  the 
share  to  which  he  or  they  would  have  been  entitled  if 
testator  had  died  intestate.  In  a  number  of  the  states, 
such  a  provision  applies  only  in  case  the  child  or  issue 
were  not  provided  for  otherwise  by  testator,  or  were 
not  intentionally  omitted.^*'  In  a  number  of  states, 
statutes  of  this  character,  entitling  an  omitted  child  to 
the  share  which  he  would  have  had  if  deceased  had  died 
intestate,  are  not  restricted  in  their  ap})lication  to 
children  born  after  the  execution  of  the  will,  but  ap]ily 
in  the  case  of  any  child,  usuall}-  whether  that  child  was 
omitted  intentionally  or  unintentionally.^'^ 

§  477.  Revival  of  will.  In  the  case  of  a  will  which 
is  revoked  by  an  express  statement  to  that  effect  in  a 
subsequent  will,  or  by  inconsistent  provisions  therein, 
the  question  has  frequently  arisen  as  to  tlie  etfcct  of  a 

13.  Walton  v.  Walton,  7  Johns.  W.  697;  Smithwick  v.  Jordan,  15 
Ch.  (N.  Y.)  258;  Graham  v.  Mass.  113.  Contra  in  England 
Burch,  47  Minn.  171,  28  Am.  St.  Simpson  v.  Walker,  5  Sim.  1.  See 
Rep.  339,  49  N.  W.  697;  Bigelow,  Redfield,  Wills  (4th  Ed.)  344. 
Wills,  134.  But  see  Bennett  v.  10.  1  Stimson's  Am.  St.  Law, 
Gaddis,   79    Ind.   347.  §    2843. 

14.  In   re   Gensemore's    Estate,  17.     1  Stimson's  Am.  St.  Law,  § 
246  Pa.   216,   92   Atl.   134.  2842.     See   Page,   Wills,   §    291;    1 

15.  Graham  v.  Burch,  47  Minn.  Woeruer,  Administration,    §   55. 
171,   28   Am.    St.   Rep.    339,   49   N. 


1850  Eeal  Property.  [§  477 

subsequent  revocation  of  the  revoking  will.  In  England 
it  was  held  by  the  couunon-law  courts  that  the  effect 
was  to  ''revive"  or  put  in  force  again  the  pro^^sions  of 
the  earlier  will,  if  this  had  not  been  destroyed,  on  the 
theory  that,  as  the  second  will  had  no  operation  until 
testator's  death,  if  it  was  revoked  it  could  not  operate 
as  a  revocation  of  the  earlier  will.^^  The  ecclesiastical 
courts,  however,  held  that  the  question  of  revival  was 
one  of  intention  purely,  to  be  decided  according  to  the 
fact  and  circumstances  of  the  particular  case.^^  This 
question  is  there  set  at  rest  by  the  Wills  Act,^"  which 
provides  ''that  no  will  or  codicil,  or  any  part  thereof, 
which  shall  be  in  any  manner  revoked,  shall  be  revived 
otherwise  than  by  the  re-execution  thereof,  or  by  a 
codicil  executed  in  manner  hereinbefore  required,  and 
showing  an  intention  to  revive  the  same,"  it  being  held 
thereunder  that  the  cancellation  or  destruction  of  the 
revoking  will  cannot  revive  the  previous  will.^^ 

In  this  country  the  view  of  the  English  ecclesiasti- 
cal courts,  that  the  question  of  revival  is  one  purely  of 
intention,  has  occasionally  been  adopted,^-  with  the 
burden,  it  seems,  of  showing  revival  upon  the  party 
asserting  it.-'  In  some  jurisdictions,  on  the  other 
hand,  the  view^  is  taken  that  the  revocation  of  the  sub- 
sequent will  ipso  facto  revives  the  earlier  one,^^  pro- 
is.  Goodright  v.  Glazier,  4  431,  4  A.  &  E.  Ann.  Cas.  306 
Burrows,  2512,  4  Gray's  Cas.  434;  and  note,  96  N.  W.  151;  Lane  v. 
1  Jarman,  Wills   (4th  Ed.)   136.  Hill,    68     N.    H.    275,    73    Am.    St. 

19.  Moore  v.  Moore,  1  Phillim.  Rep.  591;  McClure  v.  McClure,  86 
357;  Usticke  v.  Bawden,  2  Tenn.  173,  6  S.  W.  44;  In  re 
Addams,  116.  Gould's  Will,    72   Vt.   316,   47   Atl. 

20.  7  Wm.  IV.  and  Vict.  C.  1082;  See  Bohannon  v.  Walcot,  1 
26,   §   22.  How.     (Miss.)     .-566;     Randall     v. 

21.  1     Jarman,    Wills     126;     1      Beatty,  31  N.  J.  Eq.  643. 
Williams,     Executors     (9tli     Ed.)  23.     Pickens      v.      Davis,      134 
16:5.                                                               Mass.    252;    Lane    v.    Hill,    68    N. 

22.  Blackett  v.  Ziegler,  153  H.  275,  73  Am.  St.  Rep.  591.  See 
Iowa,  344,  133  N.  W.  901;  Pick-  editorial  note,  15  Harv.  Law  Rev. 
ens     V.     Davis,     134    Mass.     252;       142. 

Williams    v.    Miles,    68    Neb.    463,  24.     Stetson  v.  Stetson,  200  111. 

62  L.  R.  A.  383,  110  Am.  St.  Rep.       GOl,    61    L.    R.    A.    258,    66    N.    E. 


§  478]  Transfer  by  Will.  1851 

vided,  accordingly  to  some  courts,  there  was  uo  express 
revocation  of  the  first  will,  but  merely  an  inconsistency 
between  the  first  and  second  wills,  on  the  theory  that 
while  an  express  revocation  operates  inmiediately,  a 
revocation  by  an  inconsistent  provision  is  ambulatory 
until  death.-^  In  a  few  states  the  rule  of  the  English 
statute  has  been  adopted  in  the  absence  of  local 
legislation   on  the  subject.-'' 

There  are,  in  many  states,  statutory  provisions  on 
this  subject,  it  being  sometimes  provided,  as  in  England, 
that  a  will  once  revoked  can  be  revived  only  by  a  re- 
execution  thereof,  or  by  a  codicil  duly  executed,  while 
in  others  the  canceling,  destruction,  or  revocation  of 
the  second  will  does  not  revive  the  first  will,  unless 
such  intent  appears  in  the  terms  of  the  revocation,  or 
the  first  will  is   duly  republished.-*^* 

§  478.  Republication.  A  will  may  be  republished 
so  as  to  give  the  words  of  the  will  the  same  effect  as 
if  the  will  had  been  originally  executed  at  the  time  of 
such  republication,  that  is,  so  as  to  make  it  "speak"  as 
of  that  time.-'     Under  the  law  as  it  formerly  existed 

262;    Moore    v.    Rowlett,    269    HL  315;      Danley     v.     Jeftersou,     150 

88,    109    N.    E.    682;    Flintham    v.  Mich.  590,  121  Am.   St.  Rep.  640, 

Bradford,  10  Pa.  St.  82;    Bates  v.  13    Ann.    Cas.     242,     114     N.    W. 

Hacking,  29  R.  I.   1,  14  L.  R.  A.  470;   In  re  Noon's  Will,  115  Wis. 

(N.   S.)    937,  68   Atl.   622;    Taylor  299,   95   Am.   St.   Rep.   944,   91   N. 

V.  Taylor,   2  Nott  &  McC    (S.  C.)  W.    670.      See    editorial    note,    12 

482.  Columbia  Law  Rev.  353. 

25.  James   v.   Marvin.   3   Conn.  26a.     1  Stimson's  Am.  St.  Law, 
576;    Colvin    v.    Warford,    20    Md.  §§  2678,  2679. 

357;    Scott  v.  Fink,  45  Mich.  241,  The  destruction  of  a  codicil  re- 

7   N.   W.   799;    Cheever   v.   North,  viving  a  former  revoked  will  has 

106    Mich.    390,    37    L.   R.    A.    561,  been    decided     not    to    have    the 

58   Am.    St.    Rep.   499,   64   N.   W.  effect  of  rendering  the  revival  in- 

455.    See  Peck's  Appeal  from  Pro-  operative,   if  there  was  no   inten- 

bate,   50  Conn.   562;    Fitzpatrick's  tion    that    it    should    have    that 

Appeal,  87  Conn.  579.  89  Atl.  92;  effect.      James    v.     Shrimpton.     1 

Hawes   v.    Nicholas,    72   Tex.    481,  Prob.   Div.   431. 

2  L.  R.  A.  863,  10  S.  W.  558.  27.     1  Jarman,  Wills,  159;    Wil- 

26.  Harvell    v.    Lively,    30    Ga.  liams.  Executors  (9th  Ed.)  170. 


1852  Keal  Property.  [§  478 

in  England,  restricting  the  operation  of  a  devise  of 
lands  to  such  lands  as  were  owned  by  the  testator  at  the 
time  of  execution  of  the  will,  and  in  those  states  in 
this  country  where  the  same  rule  still  prevails,  the  effect 
of  a  republication  is  important,  as  it  brings  lands  ac- 
quired between  the  date  of  execution  and  of  republi- 
cation within  the  operation  of  a  general  devise.^*  But 
since  the  general  change  of  the  law  in  this  respect,  the 
doctrine  of  republication  has  lost  much  of  its  importance 
and  it  calls  for  consideration  now  chiefly  in  connection 
with  the  possibility  of  giving  effect  to  a  will  orginally 
invalid,^^  or  w^hich  has  been  revoked,^"  but  not  de- 
stroyed. 

The  republication  may  consist  of  a  re-execution  of 
the  instrument  with  the  same  formalities  as  are  neces- 
sary in  the  case  of  an  absolutely  new  will.  Accordingly, 
while,  previous  to  the  Statute  of  Frauds,  it  might  be 
by  means  of  an  oral  declaration  even  in  the  case  of 
land,^^  since  that  time  the  same  formalities  have  been 
required  in  the  republication,  as  in  the  making,  of  a  will 
of  land.^^  The  making  and  execution  of  a  codicil  to  a 
will  has  likewise  the  effect,  in  the  absence  of  any  ap- 
pearance of  a  contrary  intention,  of  a  republication 
of   the   will,   and  it  is  immaterial  whether  the  codicil 

28.  Beckford  v.  Parnecott  Cro.  Atl.  426;  Skinner  v.  American 
Eliz.  493;  Barnes  v.  Crow,  "4  Bible  Soc,  92  Wis.  209,  .65  N.  W. 
Brown  Ch.  2;    Luce  v.  Dimock.   1       1037. 

Root   (Conn.)    82;    Jack  v.  Shoen-  30.     In  re  Cutting's  Estate,  172 

berger,  22  Pa.  St.  416.  Cal.     191,     155     Pac,     1002,     Ann. 

29.  Burge  v.  Hamilton,  72  Ga.  Cas.  1917D,  1171;  Brown  v. 
568;  Brown  v.  Riggin,  94  111.  560,  Clark,  77  N.  Y.  369;  Burge  v. 
Manship  v.  Stewart,  181  Ind.  Hamilton,  72  Ga.  568;  Wickoff's 
299,  104  N.  E.  505;  Barnes  v.  Appeal,  15  Pa.  St.  281,  53  Am. 
Phillips,  184   Ind.   415,   111   N.   E.  Dec.  597. 

419;    Beall   v.   Cunningham,    3    B.  31.     Beckford  v.  Parnecott,  Cro. 

Mon.  (Ky.)  390,  39  Am.  Dec.  120;  Eliz.   493. 

McCurdy   v.    Neall,    42    N.    J.    Eq.  32.     Jackson  v.  Potter,  9  Johns. 
333,  7  Atl.  566;    Smith  v.  Runkle,  (N.    Y.)    312;    Love    v.    Johnston, 
—  (N.  J.)— 97  Atl.  296;  Stevens  v.  34  N.  C.  355,   1  Woerner,  Admin- 
Myers,  62  Ore.  372,  121  Pac.  434;  istration  §  56. 
Walton's    Estate.   194   Pa.   528,    45 


§  478] 


Transfer  by  "Will. 


1853 


expressly  so  provides,  or  whether  it  is  actually  annexed 
to  the  will.''^  In  the  absence  of  an  expression  of  a 
contrary  intention,  the  republication  of  a  will,  whether 
by  re-execution,  or  by  the  making  of  a  codicil,  is  of  the 
will  as  changed  by  any  pre-existing  codicils,  they  being 
in  effect  a  part  of  the  will.^*  The  mere  fact  that  the 
will  is  referred  to  by  its  original  date  does  not  take 
the  case  out  of  the  rule.^^ 


33.  1  Williams,  Executors 
(9tli  Ed.)  164;  Barnes  v.  Crow, 
4  Brown  Ch.  2;  Freeman  v.  Hart, 
61  Colo.  455,  158  Pac.  305;  Pope 
V.  Pope,  95  Ga.  87,  22  S.  E.  245; 
Hobart  x.  Hobart,  154  111.  610,  45 
Am.  St.  Rep.  151;  Manship  v. 
Stewart,  181  Ind.  299,  104  N.  W. 
505;  In  re  Murfield's  Will,  74 
Iowa,  479;  Brimmer  v.  Sohier,  1 
Cush.  (Mass.)  118;  McCurdy  v. 
Neall,    42    N.    J,    Eq.    333,    7    Atl. 


566;  Van  Alstyne  v.  Van  Alstyne, 
28  N.  Y.  375;  Stevens  v.  Myers, 
62  Ore.  372,  121  Pac.  434;  Lin- 
nard's  Appeal,  93  Pa.  313,  39  Am. 
Rep.  753;  Skinner  v.  American 
Bible  Soc,  92  Wis.  209,  65  N.  W. 
1037. 

34.  1  Williams,  Executors  (9th 
Ed.)  171;  Crosbie  v.  MacDoual,  4 
A''es.   610. 

35.  Green  v.  Tribe,  9  Ch.  Div. 
231. 


2  R.  P.— 42 


CHAPTER  XXI. 

DEDICATION. 

§  479.  Purposes  for  which   dedication   may  be  made. 

480.  No  particular  beneficiary  or  baneficiaries. 

481.  Who  may  effect  dedication. 

482.  Intention  to  dedicate. 
483..  Acceptance. 

484.  Dedication  distinguished  from  estoppel. 

485.  Qualified  and  conditional  dedication. 

486.  Effect  of   dedication. 

§  479.  Purposes  for  which  dedication  may  be  made. 
Land  may  be  "dedicated"  to  a  public  use  by  means 
of  a  declaration  by  its  owner,  either  by  word  or  act, 
of  his  intention  that  the  land  shall  be  devoted  to  such 
use.^  The  doctrine  of  dedication  appears  in  its  in- 
ception to  have  been  confined  to  the  case  of  a  dedica- 
tion of  land,  or  of  a  bridge  erected  thereon,  to  high- 
way uses,^''  but  the  scope  of  the  doctrine  has  been  very 
greatly  extended.  It  has,  for  instance,  been  decided 
that  land  may  be  dedicated  for  use  by  the  public  as  a 
park,  common  or  public  square,^  as  a  wharf  or  landing 

1.     Angell.     Highways.     §     1H2  2  Ed.  4,  9;    8  Ed.  4,  9;    8  Hen.  7, 

et   seq:   Elliott,   Roads   &   Streets,  5;    2    Co.    Inst.    705).      For    it    is 

c,    5.  presumed    by    the    law,    that    the 

la.  While  Lade  v.  Shepherd,  proprietor  of  such  land  adjoin- 
2  Strange,  1004  (anno  1735)  ap-  ing  gave  up  to  the  public  for 
pears  to  be  the  first  reported  passage  at  some  former  period  all 
case  in  which  the  doctrine  is  the  land  between  his  enclosure 
specifically  referred  to,  it  is  rea-  and  the  middle  of  the  road" 
sonable  to  suppose  that  it  existed,  (citing  Doe  d.  v.  Pearsey,  7  B. 
in  theory  at  least,  from  a  much  &  C.  306).  See  also  the  discus- 
earlier  period.  In  Woolrych,  sion  and  quotations  Cn  the  opin- 
Ways,  p.  5,  appears  the  following  ion  of  Collin,  J.,  in  Appleton  v. 
language:  'It  is  laid  down  in  the  New  York,  219  N.  Y.  250,  114  N. 
old  books,  that  in  a  highway  the  E.  73. 

king  has  nothing  except  the  pas-  2.     Baker    v.    Johnston,    6    Pet. 

sage   for   himself  and   his   people,  (U.   S.)    431;    San  Leandro   v.   Le 

but  that  the  freehold,  and  all  the  Breton,  72  Cal.  170,   13  Pac.  405; 

profits,  as  trees,  etc.,  appertain  to  Gordon    County    v.    Calhoun,    128 

the  lord  of  the  soil    (citing  Y.  B.  Ga.   781,   58   S.  E.  360;    Rhodes  v. 

(1854) 


§  479] 


Dedication. 


1855 


place,3  as  a  cemetery,-'  foi-  school  })nrposes,^  and  for  the 
erection  of  public  buildings." 

The  analogy  between  the  dedication  of  land  for  a 
park  or  common  and  its  dedication  for  a  liighway  is 
reasonably  close,  since  in  both  cases  there  results  a  riaht 
of  user  in  each  and  every  member  of  the  public.     The 


Town  of  Brightwood,  145  Ind. 
21,  43  N.  E.  942;  Pella  v.  Scholte, 
24  Iowa,  283,  95  Am.  Dec.  729; 
Northport  Wesleyan  Grove  Camp 
Meeting  Ass'n  v.  Andrews,  104 
Me.  342,  20  L.  R.  A.  (N.  S.)  976, 
71  Atl.  1027;  Higgenson  v.  Slat- 
tery,  212  Mass.  583,  99  N.  E. 
523;  Trustees  of  M.  E.  Church, 
Hoboken  v.  Council  of  Hoboken, 
33  N.  J.  L.  13,  97  Am.  Dec.  696; 
Porter  v.  International  Bridge  Co., 
200  N.  Y.  234,  93  N.  E.  716;  Le- 
Clercq  v.  Gallipolis,  9  Ohio,  217, 
28  Am.  Dec.  641;  Carter  v.  Port- 
land, 4  Ore.  339;  Com.  v.  Rush, 
14  Pa.  St.  186;  State  v.  Travis 
County,  85  Tex.  435,  21  S.  W. 
1029;  State  v.  Trask,  6  Vt.  355,  27 
Am.  Dec.  554;  Sturmer  v.  Ran- 
dolph County  Court,  42  W.  Va. 
724,  36  L.  R.  A.  300,  26  S.  E. 
532;  Thorndike  v.  Milwaukee  Au- 
ditorium Co..  143  Wis.  1,  126  N. 
W.   881. 

3.  City  of  Napa  v.  Rowland,  87 
Cal.  84,  25  Pac.  247;  Alton  v. 
Illinois  Transportation  Co.,  12  111. 
38,  52  Am.  Dec.  479;  Village  of 
Mankato  v.  Willard,  13  Minn.  13, 
97  Am.  Dec.  208;  Child  v.  Chap- 
peU,  9  N.  Y.  246;  Portland  &  W. 
V.  R.  Co.  V.  Portland,  14  Ore. 
188,  58  Am.  Rep.  299,  12  Pac.  205; 
City  of  Pittsburg  v.  Epping  Car- 
penter Co.,  194  Pa.  St.  318,  45  Atl. 
129;  Gardner  v.  Tisdale,  2  Wis. 
153,  60  Am.  Dec.  407. 


4.     Wormley    v.    Wormley,    207 
111.   411,   3   L.   R.   A.    (N.   S.)    481, 
69  N.  E.  865;   Redwood  Cemetery 
Ass'n    V.     Bandy,     93     Ind.     246; 
Hagaman  v.  Dittmar,  24  Kan.  42; 
Tracy  v.  Bittle,  213  Mo.  302,  112 
S.    W.    45;     First    Nat.    Bank    of 
Pawnee   City   v.    Hazels,    63    Neb. 
844,    56    L.    R.   A.    765,    89    N.    W. 
378;   Stockton  v.  Newark,  42  N.  J. 
Eq.    531,    9    Atl.    203;    Hunter    v. 
TruiBtees    of    Sandy    Hill,    6    Hni 
(N.  Y.)  407;  Pott  v.  Pottsville,  42 
Pa.  132;   Mowry  v.  City  of  Provi- 
dence,    10    R.    I.    52;     Pierce    v. 
Spafford,    53    Vt.    394;    Roundtree 
V.   Hutchinson,   57  Wash.    414,   27 
L.  R.  A.  (N.  S.)  875,  107  Pac.  345; 
5.     Carpenteria   School    Dist.   v. 
Heath,   56    Cal.   478;    Chapman   v. 
Floyd,     68     Ga.     455;     Board     of 
Regents  for  Normal   School   Dist. 
No.  3  V.  Painter,  102  Mo.  464,  10 
L.  R.  A.  493,  14  S.  W.  938;   Board 
of  Education  of  Incorporated  Vil- 
lage   of   Van    Wert    v.    Edson,    18 
Ohio    St.    221;    Pott   v.   Pottsville. 
42  Pa.  132;    School  Dist.  No.  2  of 
Johnson  County  v.   Hart,  3  Wyo. 
563,    27    Pac.    919.    29    Pac.    741. 
P.     Spires   v.    Los   Angeles,    150 
Cal.    64.    87    Pac.    1026;    Campbell 
County   Court  v.    Newport,   12    B. 
Mon.    (Ky.)    538;    State  v.  Travis 
County,    85    Tex.[    435,    21    S.    W. 
1029;      Board      Sup'r.s     Frederick 
County  v.  City  of  Winchester,  84 
Va.  467,  4  S.  E.  844. 


1856  Eeal  Property.  [§  479 

same  may  be  said  of  a  dedication  of  land,  covered  by- 
water,  for  use  by  the  individual  members  of  the  public, 
for  purposes  of  navigation,  i)assage  or  recreation,"^  and 
of  a  dedication  of  land  immediately  surrounding  a  well 
or  spring,  to  enable  the  public  to  obtain  water  there- 
from.^ Likewise,  a  decision  that  land  may  be  dedicated 
to  the  use  of  the  public  for  the  purpose  of  keeping 
the  view  of  the  sea  unobstructed  appears  to  involve 
merely  a  recognition  of  the  fact  that  there  may,  in 
such  a  case,  be  a  use  of  the  land  by  any  member 
of  the  public  who  may  chose  to  look  at  the  sea 
over  that  land.  But  the  position  that  land  may  be 
dedicated  for  school  purposes,  or  for  use  by  the  public 
authorities  as  a  cemetery,  involves  a  very  considerable 
departure  from  the  original  conception  of  dedication, 
since  such  a  use  is  necessarily  restricted  to  but  a 
small  part  of  the  public.  A  school  building  into  which 
any^  and  every  person  shall  have  the  right  of  entry, 
or  a  cemetery  in  which  any  and  every  person  shall 
have  the  right  of  burial,  is  not  readily  conceivable. 
And  likewise,  when  land  is  devoted  to  the  purposes  of 
the  particular  municipality,  as,  for  instance,  to  the 
erection  of  a  municipal  building,  the  beneficiaries  of  the 
use  are  not  the  public  generally,  but  that  class  of  the 
public  who  reside  within  the  municipal  limits.  As 
regards  the  dedication  of  land  for  a  wharf  or  landing 
place,  such  a  use  of  land  appears  to  be  analogous  to  its 
use  for  highway  purposes,  in  so  far  as  the  former  use 

7.  See    Shaw    v.    Crawford,    10      v.     McPherson, — Ky. — 124     S.    W. 
Johns.     236;     Compton    v.    Waco      272. 

Bridge   Co.,   62   Tex.   715;    Gillean  9.     Atty  Gen.  v.  Vineyard  Grove 

V.   Frost,    25   Tex.    Civ.   App.    371,  Co.,   181  Mass.   507,   64  N.   E.   75; 

61    S.    W.    345;     Trenton    Water  See    Atlantic    City    v.    Associated 

Power    Co.    v.    Donelly,    77    N.    J.  Realties   Corp.,  73  N.  J.   Eq.   721, 

L.    659,    73   Atl.    597.  17    Ann.    Cas.    743,    70    Atl.    345; 

8.  Smith    v.    Cornelius,    41    W.  Berrien  Springs  v.  Ferguson,  154 
Va.  59,  30  L.  R.  A.  747,  23  S.  E.  Mich.   472,   118  N.  W.   262;    Poole 
599;    McConnell   v.   Lexington,   12  v.   Commissioners  of  Rehoboth,  9 
Wheat,    582;     Raleigh    County    v.  Del.    Ch.    192,    80    Atl.    683. 
Ellison,  8  W.  Va.  308;   Thompson 


<§>  479]  Dedication.  1857 

involves  merely  a  right,  in  any  member  of  the  public, 
to  pass  to  or  from  boats  over  that  land,  but  in  so  far  as 
this  may  involve  the  temporary  storage  or  piling  of 
goods  on  the  land  by  any  member  of  the  public,  to  the 
possible  exclusion  of  any  use  whatsoever  of  the  land  by 
the  owner  of  the  land  or  by  other  members  of  the 
public,  the  applicability  thereto  of  the  doctrine  of 
dedication  appears,  on  principle,  to  be  open  to  question, 
and  there  are  judicial  expressions  to  this  effect.^^ 
The  greatest  extension  which  the  doctrine  of  dedi- 
cation has  received  is  that  involved  in  decisions  that 
land  may  be  dedicated  for  the  use  of  a  particular 
religious  sect  or  denomination,  or  a  particular  church 
society,  as  a  place  for  worship,^^  as  a  cemetery/^  or  as 
a  parsonage.^^  These  decisions  appear,  ordinarily,  to 
have  been  dictated  by  a  desire  to  uphold  a  gift  which 
would  otherwise  fail  for  lack  of  a  sufficient  conveyance, 
and  they  are  usually  sought  to  be  justified  on  the  theory 
that  such  a  use  is  a  public  use.  It  is  difficult  to  con- 
cede, however,  that  a  use  of  land  by  a  sect  or  society 
for  religious  or  cemetery  purposes  is  a  public  use.  The 
doctrine  of  dedication  has  never,  apparently,  been 
applied  in  the  case  of  land  devoted  to  a  merely  philan- 
thropic use,  such  as  an  almshouse  or  hospital,  not  under 
the  control  of  the  public  authorities,^^  and  yet  the  pub- 
lic is  ordinarily  quite  as  mueli  interested  in  such  a  use 

10.  Pearsall  v.  Post,  20  Wend.  S.)  566,  7  L.  Ed.  212;  Boyce  v. 
(N.  Y.)  Ill;  Post  V.  Pearsall,  22  Kalbaugh,  47  Md.  334,  28  Am. 
Wend.  N.  Y.)   425.  Rep.   464. 

11.  Com'rs  of  Wyandotte  Co.  v.  13.  McKinney  v.  Griggs,  5 
Presbyterian  Church,  30  Kan.  620,  Bush  (Ky.)  401,  96  Am.  Dec.  360. 
1  Pac.  109;  Griffey  v.  Briars,  7  14.  In  Cincinnati  v.  White's 
Bush.  (Ky.)  471;  Hannibal  v.  Lessee,  6  Pet.  (U.  S.)  431.  it  is 
Draper,  15  Mo.  634;  Cooper  v.  said  that  "  it  was  admitted  at  the 
Sandy  Hill  First  Presbyterian  bar  that  dedications  for  charitable 
Church,  32  Barb.  (N.  Y.)  222;  and  religious  purpo.ses,  and  for 
Williams  v.  First  Presbyterian  public  highways,  were  valid."  The 
Society,  1  Ohio  St.  478;  Atkinson  admission  appears  to  have  been 
V.  Bell,  18  Tex.  474.  unjustified  as  regards  dedications 

12.  Beatty  v.  Kurtz,  2  Pet.  (U.  for   charitable  purposes. 


1858  Real  Peopeety.  [^  480 

as  in  the  use  of  land  for  worship  under  the  auspices 
of  some  particular  church.  And  it  has  been  explicitly 
decided  that  land  cannot  be  dedicated  for  use  for  a 
raihvay,^-^  a  use  in  which  all  classes  of  the  community 
are  more  or  less  interested.  The  decisions  that  land 
may  be  dedicated  for  the  use  of  a  particular  religious 
sect  or  society,  appear  to  be  based,  directly  or  in- 
directly, upon  a  false  analogy  suggested  in  an  early 
case  in  the  federal  Supreme  Court,^^  between  the  doc- 
trine of  dedication,  and  a  doctrine,  applied  in  that 
case,  that  a  grant  for  the  establishment  of  a  church  will 
be  upheld  even  though  at  the  time  of  the  grant  there 
is  no  grantee  in  existence."  The  suggestion  thus  made, 
that  land  may  be  dedicated  for  religious  purposes,  was 
subsequently  applied  by  that  court  as  validating  an 
oral  gift  of  land  to  an  unincor[3orated  religious  body 
for  use  as  a  cemetery.^^  And  these  cases  are  ordinarily 
referred  to  as  conclusive  of  the  validity  of  a  dedication 
for  the  benefit  of  a  religious  society. 

§  480.  No  particular  beneficiary  or  beneficiaries. 
It  is  well  recognized  that  a  dedication  of  land  does  not 
involve  any  necessity  of  a  particular  grantee  or  bene- 
ficiary.^^   The  purpose  and  effect  of  a  common-law  dedi- 

15.     Elyton  Land   Co.   v.   South  purposes.       Morgan     v.     Railroad 

&  North  Alabama  Co.,  95  Ala.  631,  Co.,  96  U.  S.  716,  24  L.  Ed.  743; 

10    So.   270;    Pittsburgh,   C,   C.   &  Kansas  City  &  N.   Connecting  R. 

St.    L.    Ry.    Co.    V.    Warrum,    42  Co.  v.   Baker,   183  Mo.   312,   82   S. 

Ind.   App.    179,   82    N.   E.    934,    84  W.    85;     Iowa    Cent.    R.    Co.    v. 

N.    E.    356     (dictum);    Louisville  Homan,  151  Iowa,  404,  131  N.  W. 

etc.    R.    Co.    V.    Stephens,    96    Ky.  878. 

401,  49  Am.  St.  Rep.  303,  28  S.  W.  16.     Pawlet  v.  Clark,  9  Cranch 

14;    Lake    Erie    &    W.    R.    Co.    v.  U.  S.  292,  3  L.  Ed.  735. 

Whitham,  155  111.  514,  28  L.  R.  A.  17.     See  editorial  note  16  Harv. 

612,   46   Am.    St.    Rep.   355,    40   N.  Law  Rev.  128. 

E.  1014;  Todd  v.  Pittsburg,  Ft.  W.  18.     Beatty  v.  Kurtz,  2  Pet.   (U. 

&  C.  R.  Co.,  19  Ohio  St.  514;  Wat-  S.)   566,  7  L.  Ed.  521. 

son    v.    Chicago    M    &    St.    P.    R.  19.     Beatty    v.    Kurtz,     2     Pet. 

Co.,  46  Minn.  321,  48  N.  W.  1129.  566,  7  L.  Ed.  521;    Doe  v.  Jones, 

But    by    force    of    statute    land  11    Ala.    63;    Warren   v.    Jackson- 
may     be     dedicated     for     railway  vllle,    15    111.    236,    58    Am.    Dec. 


§  480] 


Dedicatiox. 


1859 


cation  is  to  create  a  riglit  of  user  in  the  public,  or  at 
least  in  some  particular  class  of  the  public,  and  not  in 
some  particular  person  or  persons,  natural  or  legal. 
And  for  this  reason,  not  only  is  a  particular  grantee 
or  beneficiary  unnecessary,  but  there  is,  it  seems,  no 
dedication  when  there  is  a  particular  grantee  or  bene- 
ficiary. 

As  there  cannot  be  a  dedication  in  favor  of  a  par- 
ticular person,  so  there  cannot  be  a  dedication  in 
favor  of  a  limited  number  of  persons.-"  It  must  be 
in  favor  of  the  public,  and  not  of  a  part  of  the  public. 
Consequently  an  attempted  dedication  in  favor  of  a 
municipality,  or  the  inhabitants  of  a  municipality,  has 
no  legal  validity,  unless  construed  as  a  dedication  in 
favor  of  the  whole  public,^!  and  this  although  the  numi- 
cipality  may  represent  the  public  for  tbe  purpose  of  ac- 


610;  Maywood  Co.  v.  Village  of 
Maywood,  118  lU.  61,  6  N.  E. 
866;  San  Leandro  v.  Le  Breton, 
72  Cal.  170,  13  Pac.  405;  State 
V.  Wilson,  42  Me.  9;  Winona  v. 
Huff,  11  Minn.  119;  Bryant's 
Lessee  v.  McCandless,  7  Ohio  Pt. 
2,  135;  Atkinson  v.  Bell,  18  Tex. 
874;  Meeker  v.  Puyallup,  5  Wash. 
759,  32  Pac.  727. 

20.  Hill  V.  W^ng,  193  Ala.  312, 
69  So.  445;  Illinois  Ins.  Co.  v. 
Littlefield,  67  111.  368;  City  of 
Chicago  V.  Borden,  190  111.  430, 
60  N.  E.  915;  Thomas  v.  Ford,  63 
Md.  346,  52  Am.  Rep.  513;  Witter 
V.  Harvey,  1  McCord  L.  67,  10 
Am.  Dec.  650;  Brown  v.  Oregon 
Short  Line  R.  Co.,  36  Utah,  257, 
24  L.  R.  A.  (N.  S.)  86,  102  Pac. 
740;  Talbott  v.  Richmond  &  D. 
R.  R.  Co.,  31  Graft.  (Va.)  685; 
Tupper  V.  Huson,  46  Wis.  646,  1 
N.   W.   332. 

21.  Poole  V.  Huskinson,  11  M. 
&     W.     827;     Miller     v.     City     of 


Indianapolis,  123  Ind.  196,  24  N. 
228;  Atty  Gen.  v.  Tarr,  148  Mass. 
309,  2  L.  R.  A.  87,  19  N.  E.  358; 
Trerice  v.  Barteau,  54  Wis.  99,  11 
N.   W.   244. 

In  connection  with  the  state- 
ment that  it  is  immaterial  to  the 
validity  of  a  dedication  that 
there  is  no  municipal  corporation 
existent  at  the  time  to  assume 
control  of  the  land  dedicated  on 
behalf  of  the  public,  it  is  oc- 
casionally suggested  that  the  lack 
in  this  respect  is  remedied  by 
the  subsequent  creation  of  such 
a  corporation.  Riverside  v.  .Mac- 
Lain,  210  III.  308,  66  L.  R.  A.  288. 
102  Am.  St.  Rep.  164,  71  N.  E. 
408;  Buffalo  L.  &  R.  Ry.  Co.  v. 
Hoyer.  214  N.  Y.  236.  108  N.  E. 
455;  Kniss  v.  Duquesne  Borough, 
255  Pa.  417,  100  Atl.  132;  Gillian 
v.  Frost.  25  Tex.  Civ.  App.  371. 
61  S.  W.  345.  This  is,  it  is  con- 
ceived, misleading.  The  dedica- 
tion is  valid  regar(U«^ss  of  wiietlier 


1860  Real  Property.  [§  481 

cepting  the  dedication,--  and  controlling  the  user  of  the 
land  dedicated.  . 

The  case  of  a  gift  of  land  to  a  municipal  corporation, 
effected  by  a  written  conveyance  to  the  corporation, 
for  a  purpose  involving  a  use  of  the  land  by  or  for 
the  benefit  of  the  inhabitants,  is  occasionally  referred 
to  as  a  dedication,^'^  but  it  is  not  properly  such.  In 
such  a  case  the  municipality  is  in  the  position  of  a 
grantee,  while  in  the  case  of  a  dedication  there  is,  as 
above  stated,  no  grantee.  And  conceding  that  a  valid 
dedication  may  be  made  in  favor  of  a  religious  as- 
sociation by  an  oral  declaration  of  an  intention  to  that 
effect,^'*  a  view  which,  as  before  suggested,  is  difficult 
to  harmonize  with  the  requirement  that  dedication  be 
in  favor  of  the  public  and  not  of  part  of  the  public, 
the  term  dedication  is  not  properly  applicable  when 
there  is  a  valid  conveyance  in  writing  to  such  associa- 
tion or  in  trust  therefor.  In  such  case  the  title  passes, 
not  by  dedication,  but  by  grant. 

§  481.  Who  may  effect  dedication.  No  one  other 
than  the  owner  of  land,  or  one  acting  under  authority 
from  him,  can  effect  a  dedication,^^  and  an  attempted 

such  a  corporation  is  subsequent-  R.  I.  56,  19  L.  R.  A.  262,  25  Atl. 

ly  created.  692;   Spokane  v.  Security  Savings 

22.  Post,    §    483.  Soc,  82  Wash.  91,  143  Pac.  435. 

23.  Gaynor  v.  Bauer,  144  Ala.  24.  Anie,  §  479  notes  11-13. 
448,  3  L.  R.  A.  N.  S.  1082,  39  So.  25.  Johnson  v.  Dadeville,  127 
749;  Cordano  v.  Wright,  159  Cal.  Ala.  244,  28  So.  700;  California 
610,  A.  &  E.  Ann.  Cas.  1912C,  Nav.  &  Improvement  Co.  v.  Union 
1044,  115  Pac.  227;  H.  A.  Hillmer  Transportation  Co.,  126  Cal.  433, 
Co.  V.  Behr,  264  111.  568,  106  N.  46  L.  R.  A.  825,  58  Pac.  936; 
E.  481;  In  re  Wellington,  16  Shedd  v.  Alexander,  270  111.  117, 
Pick.  (Mass.)  87,  26  Am.  Dec.  110  N.  E.  327;  Edenville  v.  R.  R. 
631;  Rowzee  v.  Pierce,  75  Miss.  Co.,  77  Iowa,  69,  41  N.  W.  568; 
846,  40  L.  R.  A.  402,  65  Am.  St.  Allen  v.  Meuwenberg,  108  Mich. 
Rep.  625,  23  So.  307;  Normal  629,  66  N.  W.  571;  Stillman  v. 
School  Dist.  No.  30  v.  Painter,  102  Olean,  210  N.  Y.  168,  104  N.  E. 
Mo.    464,    10    L.   R.   A.    493,    14    S.  128. 

W.   938;    Greene  v.   O'Connor,   18 


^  481] 


Dedication. 


1861 


dedication  by  one  not  the  owner  is  not  valididated  by 
his  subsequent  acquisition  of  title,  unless  he  thereafter 
in  some  way  recognizes  the  dedication.-*^ 

One  having  a  }iartial  or  limited  interest  in  land  can- 
not be  affected  by  a  dedication  in  which  he  does  not 
participate.  For  instance,  an  existing  easement  in  the 
land,^^  or  lien,  by  way  of  mortgage,-^  or  otherwise,-^  is 
not  affected  by  a  dedication  made  by  the  owner  of  an 
estate  in  fee  simple  in  the  land,  and  a  dedication  by 
one  cotenant  is  a  nullity  as  regards  the  other  cotenants.-'*^ 
Likewise  a  reversioner  or  remainderman  cannot  be  af- 
fected by  a  dedication  made  by  the  particular  tenant 
alone.^^ 

A  municipal  corporation,  it  has  been  held,  may  dedi- 
cate land  owned  by  it  to  a  particular  public  use,"-  and 


26.  Boerner  v.  McKillip,  52 
Kan.  508,  35  Pac.  5;  Kansas  City 
Mining  Co.  v.  Riley,  133  Mo.  574, 
34  S.  W.  835;  Camden  v.  Mc- 
Andrew  &  Forbes  Co.,  85  N.  J.  L. 
260,  88  Atl.  1034;  Chase  v.  Oregon 
City,  72  Ore.  527,  143  Pac.  1111; 
liushnell  v.  Scott,  21  Wis.  451,  24 
Am.  Dec.  555. 

27.  Delaware  &  Hudson  Co.  v. 
Olyphant  Borough,  224  Pa.  387, 
73  Atl.  458;  State  v.  Steamship 
Co.,  Ill  La.  120,  35  So.  482;  De- 
troit V.  Detroit  &  M.  R.  Co.,  23 
Mich.  173;  Sarcoxie  v.  Wild,  64 
Mo.  App.  403.  See  South  Berwick 
V.  York  County,  98  Me.  108,  56 
Atl.   623. 

28.  Hoole  V.  Atty.  Gen.  22  Ala. 
190;  Jacobs  Pharmacy  Co.  v. 
Luckie,  143  Ga.  457,  Ann.  Cas. 
1917A,  1105,  85  S.  E.  332;  H.  A. 
Hillmer  Co.  v.  Behr,  264  111.  568, 
106  N.  E.  481;  Granite  Bituminous 
Pav.  Co.  V.  McManus,  244  Mo.  184, 
148  S.  W.  621;  Gate  City  v.  Rich- 
mond, 97  Va.  337.  33  S.  E.  615. 


29.  Hays  v.  Perkins,  109  Mo. 
102,  18  S.  W.  1127;  Morning  v. 
Lincoln,  93  Neb.  364,  140  N.  W. 
638. 

30.  South  Baltimore  Harbor  & 
Imp.  Co.  V.  Smith,  85  Md.  537, 
37  Atl.  27;  St.  Louis  v.  Laclede. 
96  Mo.  197,  9  Am.  St.  Rep.  334,  9 
S.  W.  581;  Thomason  v.  Dayton, 
40  Ohio  St.  63;  Daniels  v.  Almy, 
18  R.  I.  244.  27  Atl.  330;  Scott 
V.   State,   1   Sneed    (Tenn.)    629. 

31.  Wood  V.  Veal,  5  Barn.  & 
Aid.  454;  City  of  Durham  v. 
Southern  R.  Co.,  121  Fed.  894; 
Rives  V.  Dudley.  56  N.  C.  126, 
67  Am.  Dec.  231;  Schenley  v. 
Com.,  36  Pa.  29.  78  Am.  Dec. 
359;  McKinney  v.  Duncan.  121 
Tenn.  265.  118  S.  W.  683;  See 
editorial  note.  21  Harv.  Law 
Rev.   151. 

32.  Boston  v.  Lecraw.  17  How. 
Pr.  (N.  Y.)  426;  San  Francisco 
V.  Calderwood,  .'.1  Cal.  585; 
Holladay  v.  City  and  County  of 
San    Francisco,    124    Cal.    352,    57 


1862 


Real  Peoperty. 


[§  482 


a  dedication  by  the  United  States  government,  by- 
means  of  an  Act  of  Congress,  has  been  recognized^^  as 
lias  a  dedication  by  a  state. ^^ 

§  482.  Intention  to  dedicate.  A  dedication  need 
not  be  by  any  formal  act  or  declaration,  and  it  is 
sufficient  if  in  any  way  the  owner  of  the  land  indicates 
an  intention  to  devote  the  land  to  the  public  use.^** 
The  act  of  dedication  is  affirmative  in  character,  and 
the  intention  to  dedicate  must  be  clearly  shown.^^  It, 
however,  the  acts  of  the  owmer  of  the  land  are  such  as 
unequivocally  to  indicate  an  intention  to  dedicate,  the 
fact  that  he  had  no  such  intention  is  immaterial.^^ 
In  case  his  acts  are  equivocal  in  character,  he  may,  ac- 


Pac.  146;  Attorney  General  v. 
Tarr,  148  Mass.  309,  2  L.  R.  A. 
87,  19  N.  E.  358;  State  v.  Wood- 
ward,  23   Vt.   92. 

33.  United  States  v.  Illinois 
Cent.  R.  Co.,  154  U.  S.  225,  237, 
38  L.  Ed.  971;  Cook  v.  Burling- 
ton, 30  Iowa,  94,  6  Am.  Rep.  649; 
Wells  V.  Pennington  County,  2 
S.  D.  1,  39  Am.  St.  Rep.  758,  48 
N.    W.    305. 

34.  Snowden  v.  Loree,  122  Fed. 
493;  Zinc  Co.  v.  City  of  La  Salle, 
117  111.  411,  2  N.  E.  406,  8  N.  E. 
81;  Terre  Haute  &  I.  R.  Co.  v. 
Scott,  74  Ind.  29;  Reilly  v.  City 
of  Racine,  51  Wis.  526,  8  N.  W. 
417. 

34a.  Hill  V.  Houk,  155  Ala. 
448,  46  So.  562;  Quinn  v.  Ander- 
son, 70  Cal.  454,  11  Pac.  746; 
Godfrey  v.  City  of  Alton,  12  IH. 
29,  52  Am.  Dec.  476;  Williams 
V.  Wiley,  16  Ind.  362;  HaU  v. 
McLeod,  2  Mete.  (Ky.)  98,  74 
Am.  Dec.  400;  Wright  v.  Tukey, 
3  Cush.  (Mass.)  290;  Buntin  v. 
Danville.  93  Va.  200,  24  S.  E. 
30. 

35.  Harper    v.    State,    109    Ala. 


66,  19  So.  901;  Monterey  v. 
Malarin,  99  Cal.  290,  33  Pac.  840; 
Denver  v.  Jacobson,  17  Colo. 
497,  30  Pac.  246;  City  of  Hart- 
ford V.  New  York  &  N.  E.  R. 
Co.,  59  Con.  250,  22  Atl.  37; 
Swift  V.  Lithonia,  101  Ga.  706,  29 
S.  E.  12;  Bethel  v.  Pruett,  215 
111.  162,  74  N.  E.  Ill;  State  v. 
Green,  41  Iowa,  693;  O'Malley  v. 
Dillenbeck  Lumber  Co.,  141  Iowa, 
186,  119  N.  W.  601;  Hayden  v. 
Stone,  112  Mass.  346;  State  v. 
Nudd,  23  N.  H.  327;  Heiple  v. 
East  Portland,  13  Ore.  97;  Cin- 
cinnati &  M.  V.  R.  Co.,  V.  Rose- 
ville,  76  Ohio  St.  108,  81  N. 
E.  178;  Harris  v.  Commonwealth, 
20  Graft.  (Va.)  833;  Atlas  Lum- 
ber Co.  V.  Quirk,  28  S.  Dak.  643, 
135  N.  W.  172;  Provident  Trust 
Co.  V.  City  of  Spokane,  63 
Wash.  92,  114  Pac.  1030;  Lynch- 
burg Traction  &  Light  Co.  v. 
Guill,   107  Va.  86,  57   S.  E.  644. 

36.  Town  of  Holly  Grove  v. 
Smith,  63  Ark.  5,  37  S.  W.  956; 
Frauenthal  v.  Slaten,  91  Ark. 
350,  121  S.  W.  395;  Denver  v. 
Clements,  3  Colo.  484;   Hanson  v. 


§  482] 


Dedication. 


1863 


cording  to  some  decisions,  testify  as  to  his  actual  inten- 
tion.^^ 

The  existence  or  non  existence  of  the  intent  to 
dedicate  in  any  particular  case  is  a  question  of  fact 
rather  than  of  law.^^ 

Public  user  as  evidence.     There  are  numerous 


decisions  to  the  effect  that  the  mere  fact  that  land  is 
used  by  the  public  for  a  greater  or  less  time  does  not 
in   itself    show    a    dedication   thereof   by   the    owner,^* 


Proffer,  23  Idaho  705,  132  Pac. 
573;  Seidschlag  v.  Antioch,  207 
in.  280,  69  N.  E.  949;  Miller  v. 
Indianapolis,  123  Ind.  196,  24  N. 
E.  228;  Tise  v.  Whitaker  Harvey 
Co.,  146  N.  C.  374,  59  S.  E.  1012; 
Cole  V.  Minnesota  Loan  &  Trust 
Co.,  17  N.  Dak.  409,  17  Ann.  Cas. 
304,  117  N.  W.  354;  Kuck  v. 
Wakefield,  58  Ore.  549,  115  Pac. 
428;  Lamar  County  v.  Clemenis, 
49  Tex.  347;  Champ  v.  Nicholas 
County  Court,  72  W.  Va.  475,  78 
S.  E.  36L 

37.  Bidinger  v.  Bishop,  76  Ind. 
244;  Goodfellow  v.  Riggs,  88 
Iowa,  540,  55  N.  W.  319;  City  of 
Chicago  V.  Chicago,  R.  I.  &  P.  Ry. 
Co.,  152  111.  561,  38  N.  E.  768; 
Helm  V.  McClure,  107  Cal.  199,  40 
Pac.  437.  Contra,  Perkins  v. 
Fielding,  119  Mo.  149,  24  S.  W. 
444,   27   S.   W.   1100. 

38.  City  of  Hartford  v.  New 
York  &  N.  E.  R.  Co.,  59  Conn. 
250,  22  Atl.  37;  Harmony  v. 
Clark,  250  111.  57,  95  N.  E.  47; 
Owensboro  v.  Muster,  111  Ky. 
856.  C4  S.  W.  840;  Cushwa  v. 
Williamsport,  117  Md.  306,  83  Atl. 
389;  Adams  v.  Iron  Cliffs  Co.,  78 
Mich.  278,  18  Am.  St.  Rep.  441, 
44  N.  W.  270;  Morse  v.  Zeize,  34 
Minn.    35,    24    N.    W.    287;     New 


Orleans,  J.  &  G.  N.  R.  Co.  v. 
Moye,  39  Miss.  374;  Benton  v.  St. 
Louis,  217  Mo.  687,  118  S'.  W. 
418;  Wood  v.  Kurd,  34  N.  J.  L. 
87;  Waters  v.  Philadelphia,  208 
Pa.  St.  189,  57  Atl.  523;  Folsom 
V.  Town  of  Underhill,  36  Vt. 
580.  The  facts  on  which  a  find- 
ing of  dedication  vel  non,  in  a 
large  number  of  cases,  was  based, 
are  stated  and  considered  in  a 
note  to  Benton  v.  St.  Louis,  129 
Am.  St.  Rep.  582  et  seq. 

39.  Folkstone  Corp.  v.  Brock- 
man  (1914)  App.  Cas.  338;  Irwin 
V.  Dixion,  19  How.  (U.  S.)  10 
13  L.  Ed.  25;  McKey  v.  Village 
of  Hyde  Park,  134  U.  S.  84,  33 
L.  Ed.  860;  Steele  v.  Sullivan,  70 
Ala.  589;  San  Francisco  &  Grote, 
120  Cal.  59,  41  L.  R.  A.  335,  65 
Am.  St.  Rep.  155,  52  Pac.  127; 
Healey  v.  Atlanta,  125  Ga.  736,  54 
S.  E.  749;  Palmer  v.  Chicago,  248 
111.  201,  93  N.  E.  765;  Johnson 
V.  Robertson,  156  Iowa,  64.  135 
N.  W.  585;  Cyr  v.  Madore,  73  Me. 
53;  Hayden  v.  Stone,  112  Mass. 
340;  £tacey  v.  Miller,  14  Mo.  478; 
Nelson  v.  Reick,  96  Neb.  486, 
148  N.  W.  331 ;  Lewis  v.  City  of 
Portland,  25  Ore.  133,  42  Am.  St. 
Rep.  772;  Weiss  v.  Borough  of 
South  Bethlehem.  136  Pa.  294.  20 


1864 


Real  Property. 


[§  482 


but  the  owner's  acquiescence  in  such  user  of  the  land  is 
a  fact  to  be  considered  in  connection  with  other  facts 
bearing  on  the  question  of  dedication,^^  the  weight  to 
be  attributed  to  such  acquiescence  depending,  it  would 
seem,  on  the  length  and  character  of  the  user,  the 
nature  of  the  place  in  w^hich  it  occurs,  the  ability  of  the 
owner  to  prevent  such  user  by  the  public  without  inter- 
fering with  his  own  user  of  the  land,  as  well  as  other 
circumstances.^^  The  theory  is  that  if  the  public  user 
has  been  openly  as  of  right,  and  for  so  long  a  time  that 


Atl.  801;  Worthington  v.  Wade, 
82  Tex.  26,  17  S.  W.  520;  Bacon 
V.  Boston  &  M.  R.  Co.,  83  Vt.  421, 
76  Atl.  128;  Lynchburg  Traction 
&  Light  Co.  V.  Guill,  107  Va.  86, 
57  S.  E.  644;  Cunningham  v. 
Hendricks,  89  Wis.  632,  62  N.  W. 
410.  But  in  Kentucky  the  con- 
tinuous public  user  of  a  pass- 
way  for  fifteen  years  without  let 
or  hindrance  from  the  owner  has 
been  regarded  as  raising  a  con- 
clusive presumption  of  dedication. 
Bloomfield  v.  Allen,  146  Ky.  34. 
141  S.  W.  400. 

40.  Schwerdtle  v.  Placer 
County,  108  Cal.  589,  41  Pac. 
448;  Atlanta  Railway  &  Power 
Co.  V.  Atlanta  Rapid  Transit 
Co.,  113  Ga.  481,  39  S.  E.  12; 
City  of  Chicago  v.  Chicago  R.  I. 
&  P.  Ry.  Co.,  152  111.  561,  38  N. 
E.  768;  State  v.  Birmingham,  74 
Iowa,  407,  38  N.  W.  121;  Southern 
Railway  v.  Coplinger's  Adm'r,  151 
Ky.  749,  152  S.  W.  947;  Neal  v. 
Hopkins,  87  Md.  19,  39  Atl.  322; 
Klenk  v.  Town  of  Walnut  Lake. 
51  Minn.  381,  53  N.  W.  703;  New 
Orleans,  J.  &  G.  N.  R.  Co.  v. 
Moye,  39  Miss.  374;  Penquite  v. 
Lawrence,  11  Ohio  St.  274;  Weiss 
V.  South  Bethlehem  Borough,  136 
Pa.   St.    294,    20    Atl.   801;    Water- 


town  V.  Troeh,— S.  Dak.—,  125  N. 
W.  501;  Bennington  County  v. 
Manchester,  87  Vt.  555,  90  Atl. 
502;  Christianson  v.  Caldwell,  152 
Wis.  135,  139  N.  W.  751;  Sturmer 
V.  Randolph  County  Court,  42  W. 
Va.  724,  36  L.  R.  A.  300,  26  S.  E. 
532.  But  that  acquiescence  in 
public  user  for  less  than  the  pre- 
scriptive period  is  insuflBcient  to 
evidence  dedication,  see  Jones  v. 
Peterson,  178  Iowa,  1389,  161  N. 
W.  181. 

In  a  considerable  number  of 
Jurisdictions  the  public  user  of 
one's  land  under  claim  of  right,  if 
continued  for  the  prescriptive 
period,  is  regarded  as  giving  rise 
to  a  conclusive  presumption  of 
the  legal  creation  of  rights  of 
user  in  public,  analogous  to 
the  conclusive  presumption  of  a 
gi'ant  on  which  the  doctrine  of 
prescription  for  private  rights 
has  ordinarily  been  based.  This 
matter  we  consider  in  connection 
with  the  doctrine  of  prescription. 
Post,  §  533. 

41.  That  the  question  whether 
acquiescence  in  the  user  is  such 
as  to  evidence  an  intention  to 
dedicate  is  purely  one  of  fact,  see 
Folkstone  Corporation  v.  Brock- 
man  App.  Cas.   (1914)   338. 


*§>  482  J  Dedication.  ]865 

it  must  have  come  to  the  knowledge  of  the  owner  of  the 
land,  the  owner's  acquiescence  therein  may  justify  the 
inference  that  he  intended  that  it  be  devoted  to  such 
use.^2  jf  ti^g  usej.  is  ^q^  ^^g  ^f  pig^t,  but  is  based  upon 
a  license  or  permission  given  to  individuals  or  to  a 
class  of  individuals,  the  owner's  acquiescence  therein 
can  obviously  not  support  an  inference  of  dedication.-*"' 
When  the  owner  of  land  leaves  it  open  in  whole  or 
in  part  as  a  means  of  access  to  his  own  premises,  the 
fact  that  he  allows  the  public  generally  to  use  it  for 
purposes  of  passage  is  but  slight,  if  any,  evidence  of 
an  intention  to  dedicate,  since  he  could  not  con- 
veniently leave  it  open  to  those  persons  coming  to  his 
own  premises  and  close  it  as  against  all  others.'*'*  And 
the  owner's  mere  acquiescence  in  the  use  of  land  by  the 
public  for  purposes  of  travel  or  recreation  can  furnish 
but  slight  evidence  of  dedication  when  such  land  is  un- 
enclosed land,  not  in  use  for  purposes  of  cultivation  or 
otherwise.^"'^    That,  on  the  other  hand,  one  whose  land  is 

42.  See  per  Blackburn  J.  in  25  Ore.  133,  22  L.  R.  A.  736,  42 
Greenwich  Board  of  Works  v.  Am.  St.  Rep.  772;  Columbia  &  P. 
Maudslay,  L.  R.  5  Q.  B.  404.  S.  R.  Co.  v.  Seattle,  33  Wash.  513, 

43.  Barraclough  v.   Johnson,   8  74  Pac.   670. 

Ad.   &  El.   99;    Wooster   v.   Fiske,  45.     Tutwiler    v.    Kendall,    113- 

115  Me.  161,  98  Atl.  378;    Carpen-  Ala.   664,   21    So.   332;    Latham   v. 

ter  V.  City  of  St.  Joseph,  263  Mo.  Los  Angeles,  87  Cal.  514,  25  Pac. 

705,  174  S.  W.  53.  673;   Ely  v.  Parsons,  55  Conn.  83, 

44.  Irwin  v.  Dixion,  9  How.  10  Atl.  499;  Savannah  v.  Standard 
(U.  S.)  10,  13  L.  Ed.  25;  Loomis  Fuel  Supply  Co.,  140  Ga.  353,  78 
V.  Connecticut  Ry.  &  Lighting  Co.,  S.  E.  906;  Kyle  v.  Logan,  87  111. 
78  Conn.  156,  61  Atl.  539;  Georgia  64;  Hansen  v.  Green,  275  111.  221. 
R.  R.  &  Banking  Co.  v.  Atlanta.  113  N.  E.  982;  State  v.  Kansas 
118  Ga.  486,  45  S.  E.  256;  Chicago  City  etc.  R.  Co.,  45  Iowa,  139; 
V.  Chicago,  R.  I.  &  P.  R.  Co.,  152  Tucker  v.  Conrad,  103  Ind.  349, 
111.  561,  38  N.  E.  768;  Pennsylvania  2  N.  E.  803;  Rathinan  v.  Noren- 
Co.  V.  Plotz,  125  Ind.  26,  24  N.  E.  berg,  21  Neb.  467,  32  N.  W.  305; 
343;  Bradford  v.  Fultz,  167  Iowa,  Hutto  v.  Tiildall.  6  Rich.  L.  (S. 
686,  149  N.  W.  925;  Durgin  v.  C.)  396;  Gulf  C.  &  S.  F.  R.  Co.  v. 
Lowell,  3  Allen  (Mass.)  398;  Rail-  Montgomery,  85  Tex.  6f.  19  R.  W. 
road  V.  Roseville,  76  Ohio  St.  108,  1015. 

81  N.  E.  178;    Lewis  v.  Portland, 


186G  Keal  Peopeety.  [§  482 

for  the  most  part  enclosed,  leaves  outside  his  fence  a 
strip  suitable  for  passage,  not  apparently  for  his  own 
convenience,  and  acquiesces  in  the  public  use  of  that 
strip,  may  frequently  justify  the  inference  of  an  inten- 
tion on  his  i)art  to  dedicate  such  strip  to  the  public 
use.^*' 

In  some  jurisdictions  it  has  been  asserted  that  if  the 
owner  of  land  acquiesces  in  the  public  use  thereof  for 
such  a  length  of  time  that  the  public  accommodation 
and  private  rights  might  be  materiall}^  affected  by  an 
interruption  of  the  enjoyment,  an  intention  to  dedicate 
may  be  presumed.^^  This  statement,  borrowed,  directly 
or  indirectly,  from  a  dictum  in  an  early  case  in'  the 
Supreme  Court  of  the  United  States,^'^  appears  to  be 
somewhat  opposed  to  the  cases  above  referred  to,  in 
which  it  is  decided  that  the  fact  of  user  alone  is  not 
sufficient  of  itself  to  show  a  dedication,^^  and  it  is  dif- 
ficult to  see  how  the  possibility  of  detriment  to  public 
or  private  interests  by  reason  of  the  interruption  of 
the  use  can  have  a  bearing  upon  the  question  whether 
there  has  been  a  dedication,  a  question  of  the  land- 
owner's intention.^" 

46.  See  McCracken  v.  Joliet,  Marion  v.  Skinman,  127  Ind.  130, 
271  111.  270,  111  N.  E.  131;  Carl-  11  L.  L.  A.  55,  26  N.  E.  676; 
son  V.  Allen,  90  Kan.  457,  135  Cromer  v.  State,  21  Ind.  App.  502, 
Pac.  669;  Neal  v.  Hopkins,  87  52  N.  E.  239;  State  v.  Wilson,  42 
Md.  19,  39  Atl.  322;  Boonville  Me.  9;  Case  v.  Favier,  12  Minn. 
Special  Road  Dist.  v.  Fuser,  184  89;  Parrish  v.  Stephens,  1  Ore. 
Mo.  App.  634,  171  S.  W.  962;  59;  Hughes  v.  Providence  etc.  R. 
Benton  v.  St.  Louis,  217  Mo.  687,  Co.,  2  R.  I.  493;  Johnson  City  v. 
118  S.  W.  418,  129  Am.  St.  Rep.  Wolfe,  103  Tenn.  277.  52  S.  W. 
561;  Robison  v.  Gebauer,  98  Neb.  991;  Whittaker  v.  Ferguson,  16 
196,  152  N.  W.  329;  Johnson  City  Utah,  240,  51  Pac.  980;  Richmond 
V.  Wolfe,  103  Tenn.  277,  52  S.  W.  v.  Stokes,  31  Gratt.  (Va.)  713; 
991;  Schettler  v.  Lynch,  23  Utah,  Roundtree  v.  Hutchinson,  57 
305,  64  Pac.  955;  Humphrey  v.  Wash.  414,  27  L.  R  A..  (N.  S.) 
Krutz,    77    Wash.    152,    137    Pac.  875,  107  Pac.  345. 

806.  48.     Cincinatti  v.  White,  6  Pet. 

47.  Macon  v.  Franklin,  12   Ga.      431 

239;    Chicago    v.    Wright,    69    111.  49.     Ante,  this  section,  note  39. 

318;     Indianapolis    v.    Kingsbury,  50.     See   Hayden   v.    Stone,    112 

101    Ind.    200,    51    Am.    Rep.    749;       Mass.    346. 


§  482] 


Dedication. 


186< 


That  the  public  user  has  been  aceomiianied  by  ex- 
penditures on  the  part  of  the  municipal  authorities,  to 
adapt  the  land  to  such  user,  and  that  the  land  owner 
knew  of  such  expenditures,  and  acquiesced  therein, 
would  appear  to  be  a  consideration  indicative  of  an 
intention  on  his  part  to  dedicate,  or  perhaps  operative 
to  preclude  him  from  denying  such  intontion.^i 

That  the  owner  of  land  continues  to  pay  taxes 
thereon,"^-  or  that  he  makes  a  conveyance  of  thQ  land,^^ 
may  tend  to  rebut  any  inference  that  he  has  dedicated 
it  to  public  use.  That  he  has  maintained  a  gate  or 
bars  across  the  land,  thus  interfering  more  or  less  with 
any  public  user  thereof,  is  evidence  in  rebuttal  of  any 
rights  in  the  public,'^^  though  not  conclusive  in  this 
regard.^^ 


51.  See  Eldridge  v.  Collins,  75 
Neb.  65,  105  N.  W.  1085;  Harris 
V.  Commonwealth,  20  Gratt.  (Va.) 
833;  McKenzie  v.  Gilmore, —  (Cal.) 
— ,  33  Pac.  262;  State  v.  Birming- 
ham, 74  Iowa,  411,  38  N.  W.  121; 
Raymond  v.  Wichita,  70  Kan.  523, 
79  Pac.  323;  Rex  v.  thomas,  7 
El.  &  Bl.  39&. 

52.  Mansur  v.  State,  60  Ind. 
357;  City  of  Topeka  v.  Cowee,  48 
Kan.  345,  29  Pac.  560;  Case  v. 
Favier,  12  Minn.  89  (Gil.  48); 
Bauman  v.  Boeckeler,  119  Mo.  189, 
24  S.  W.  207;  Eugene  v.  Lowell, 
72  Ore.  237,  143  Pac.  903.  But 
payment  of  taxes  is  but  slight 
evidence  against  a  dedication.  See 
Rhodes  v.  Town  of  Brightwood!, 
145  Ind.  21,  43  N.  E.  942;  Getchell 
V.  Benedict,  57  Iowa,  121,  10  N. 
W.  321;  San  Leandro  v.  Le 
Breton,  72  Cal.  170,  13  Pac.  405; 
City  of  Ottawa  v.  Gentzer,  160  111. 
509,  43  N.  E.  601. 

53.  Hall  V.  City  of  Baltimore. 
56  Md.  187;  Case  v.  Favier,  13 
Minn.  89    (Gil.  48). 


54.  Rugby  Charity  Trustees  v. 
Merry  weather,  11  East  375  note; 
Jones  V.  Phillips,  59  Ark.  35, 
26  S.  W.  386;  Cook  v.  Sudden,  94 
Cal.  443,  29  Pac.  949;  Bidinger  v. 
Bishop,  76  Ind.  244;  Gray  v. 
Haas,  98  Iowa,  502,  67  N.  W.  394; 
State  V.  Adkins,  42  Kan,  203,  21 
Pac.  1069;  Cyr  v.  Madore,  73  Me. 
53;  Com.  v.  Newbury,  2  Pick. 
(Mass.)  51;  Field  v.  Mark,  125 
Mo.  502,  28  S.  W.  1004;  Carpenter 
V.  Gwynn,  35  Barb.  (N.  Y.)  395;- 
Lewis  v.  Portland,  25  Ore.  133, 
42  Am.  St.  Rep.  772,  22  L.  R.  A. 
736,  35  Pac.  256;  Wickre  v.  In- 
dependence, 31  S.  D.  623,  141 
N.  W.  973. 

55.  People  v.  Eel  River  etc. 
R.  Co.,  98  Cal.  665.  33  Pac.  728; 
Indianapolis  v.  Kingsbury,  101 
Ini.  200,  51  Am.  Rep.  749;  Brad- 
ford v.  Fultz,  167  Iowa,  686,  149 
N.  W.  925;  Eldridge  v.  Collins. 
75  Neb.  65,  105  N.  W.  1085.  But 
that  the  maintenance  of  gates 
and  bars,  in  four  different  places 
within  a  distance  of  half  u  mile 


1868 


Eeal  Peoperty. 


[§  482 


Sales  with  reference  to  plat.     As   a  general 

rule,  if  the  owner  of  land  lays  it  off  into  lots,  with 
streets  and  alleys  intersecting  the  same,  and  thereafter 
sells  lots  with  reference  to  such  streets  and  alleys,  or 
with  reference  to  a  plat  on  which  they  appear,  he  is 
regarded  as  having  dedicated  to  the  public  the  land 
covered  by  such  street  and  alleys,^*'  and  a  like  result 
has  been  held  to  follow  if  he  sells  lots  with  reference 
to  a  plat  made  by  another.^ ^     But  that  the  owner  of 


conclusively  excluded  an  infer- 
ence of  dedication,  see  Jones  v. 
Davis,    35   Wis.   376. 

56.  Irwin  v.  Dixion,  9  How. 
(U.  S.)  10,  31,  13  L.  R.  A.  25; 
South  &  N.  A.  R.  Co.  V.  Davis, 
185  Ala.  193,  64  So.  606;  Balmat 
V.  Argenta,  123  Ark.  175,  184 
S.  W.  445;  Porter  v.  Carpenter, 
39  Fla.  14,  21  So.  788;  Fossion 
V.  Landry,  123  Ind.  136,  24  N. 
E.  96;  Schick  v.  West  Davenport 
Imp.  Co.,  167  Iowa,  294,  145  N. 
W.  689,  149  N.  W.  451;  Bartlett 
V.  City  of  Bangor,  67  Me.  460; 
Mayor  &  City  Council  of  Balti- 
more V.  Frick,  82  Md.  77,  33 
Atl.  435;  Briel  v.  City  of  Natchez, 
48  Miss.  423;  Harrington  v.  Man- 
chester, 76  N.  H.  347,  82  Atl.  716; 
Ridgefield  Park  v.  New  York,  S. 
&  W.  R.  Co.,  85  N.  J.  L.  278,  89 
Atl.  773;  In  re  Hunter,  163  N. 
Y.  542,  57  N.  E.  735;  Sexton  v. 
Elizabeth  City,  169  N.  C.  385,  86 
S.  E.  344;  Meier  v.  Portland  Cable 
Ry.  Co.,  16  Ore.  500,  1  L.  R.  A. 
856,  19  Pac.  610;  Quicksall  v. 
City  of  Philadelphia,  177  Pa.  301, 
35  Atl.  609;  Chambersburg  Shoe 
Mfg.  Co.  v.  Cumberland  Valley  R. 
Co.,  240  Pa.  519,  87  Atl.  698; 
Brown  v.  Curran,— (R.  I.) — 83 
Atl.  515;  City  of  Elkins  v.  Dono- 
hoe.  74  W.  Va.  335,  81  S.  E.  1130. 


Likewise  a  part  or  square 
shown  on  a  plat  with  reference 
to  which  lots  have  been  sold  has 
been  regarded  as  dedicated. 
Frauenthal  v.  Slaten,  91  Ark.  350, 
121  S.  W.  395;  Davidow  v.  Gris- 
wold,  23  Cal.  App.  188.  137 
Pac.  619;  East  Atlanta  Land 
Co.  V.  Mower,  138  Ga.  380,  75 
S.  E.  418;  New  Orleans  v. 
Carrolton  Land  Co.,  131  La. 
1092,  60  So.  695;  Northport 
Grove  Camp  meeting  Ass'n  v. 
Andrews,  104  Me.  342,  20  L.  R.  A. 
(N.  S.)  976,  71  Atl.  1027;  Cush- 
wa  V.  Williamsport,  117  Md.  306. 
83  Atl.  389;  Atty.  Gen.  v.  Abbott, 
154  Mass.  323,  13  L.  R.  A.  251,  28 
N.  E.  346;  Pondler  v.  Minnea- 
polis, 103  Minn.  479,  115  N.  W. 
274;  Ramstad  v.  Carr,  31  N.  D. 
504,  L.  R.  A.  1916B,  1160,  154 
N.  W.  195;  Lueders  v.  Town  of 
Tenino,  49  Wash.  521,  95  Pac. 
1089;  as  has  a  wharf,  under  like 
circumstances.  City  of  Pittsburg 
V.  Epping — Carpenter  Co.,  194  Pa. 
318,  45  Atl.  129.  But  see  Palen 
V.  Ocean  City,  64  N.  J.  L.  669, 
46    Atl.    774. 

57.  Hall"  V.  Breyfogle,  162  Ind. 
494,  70  N.  E.  883;  Thomas  v. 
Metz,  236  111.  86,  86  N.  E.  184; 
Longworth  v.  Sedevic,  165  Mo. 
221,  65  S.  W.  260;  Clark  v.  Eliza- 


§  482] 


Dedication. 


1869 


land  makes  a  plat  thereof,  without  making  any  sales  in 
accordance  therewith,  has  been  usually  regarded  as  not 
involving  a  dedication,^^  in  the  absence  of  a  statutory 
provision  for  dedication  by  the  filing  of  a  plat.^^  That 
a  dedication  may  result  from  sales  with  reference  to  a 
plat  it  is  unnecessary,  it  has  been  decided,  that  the 
spaces  asserted  to  be  dedicated  be  marked  on  the  plat 
as  streets  alleys  or  squares,  it  appearing  from  a  con- 
sideration of  the  plat  as  a  whole,  with  reference  to 
the  surrounding  circumstances,  that  the  spaces  were 
intended  to  be  devoted  to  a  public  use.^**^ 

In  a  considerable  number  of  the  cases  in  which  this 
doctrine  of  dedication  by  sales  with  reference  to  a 
plat  has  been  asserted,  the  rights  of  individual  pur- 
chasers of  lots  only  were  in  question,  but  their  rights, 
as  against  their  vendor,  to  have  the  streets  and  other 
public  places  kept  open,  in  accordance  with  the  plat  on 
the  strength  of  which  they  made  their  purchases,  is  to 


beth,  40  N.  J.  L.  172;  Wyman  v. 
Mayor  of  New  York,  11  Wend.  (N. 
Y.)  486;  Oregon  City  v.  Oregon  & 
C.  R.  Co.,  44  Ore.  165,  74  Pac. 
924;  City  of  Pittsburg  v.  Epping 
Carpenter  Co.,  194  Pa.  318,  45  Atl. 
129;  Deadwood  v.  Whittaker,  12 
S.  Dak.  515,  81  N.  W.  908;  Corsi- 
cana  v.  Zorn,  97  Tex.  317,  78  S. 
W.  924. 

58.  United  States  v.  Chicago,  7 
How.  (U.  S.)  185,  12  L.  R.  A. 
660;  Webb  v.  Demopolis,  95  Ala. 
116,  21  L.  R.  A.  62,  13  So.  289; 
Town  of  Holly  Grove  v.  Smith,  63 
Ark.  5,  37  S.  W.  956;  People  v. 
Reed,  81  Cal.  70,  15  Am.  St.  Rep. 
22,  22  Pac.  474;  Baltimore  & 
Ohio  S.  W.  Ry.  Co.  v.  Seymour, 
154  Ind.  17,  55  N.  E.  953  (sem 
ble) ;  Bennett  v.  Seibert,  10  Ind. 
App.  369,  35  N.  E.  35;  Rowan  v. 
Portland,  8  B.  Mon.  (Ky.)  232; 
Quirk  V.  Miller,  129  La.  1071,  57 
2  R.  P.— 43 


So.  521;  Whitworth  v.  Berry,  69 
Miss.  882,  12  So.  146;  New  York 
&  L.  B.  R.  Co.  V.  Borough  of 
South  Amboy,  57  N.  J.  L.  252, 
30  Atl.  628;  Nodine  v.  Union,  42 
Ore.  613,  72  Pac.  582;  Patterson 
V.  Peoples  Natural  Gas.  Co.,  172 
Pa.  St.  554,  33  Atl.  575. 

59.     Post,  notes  fi3a-66. 

59a.  East  Birmingham  Realty 
Co.  V.  Birmingham  Machine  & 
Foundry  Co.,  160  Ala.  461,  49  So^ 
448;  Los  Angeles  v.  McCollum, 
156  Cal.  148,  23  L.  R.  A.  (N.  S.) 
387,  103  Pac.  914;  Kimball  v. 
Chicago,  253  111.  105,  97  N.  E. 
257;  Indianapolis  v.  Kingsbury, 
101  Ind.  200,  51  Am.  Rep.  749; 
Hanson  v.  Eastman,  21  Minn.  509; 
Bu.schmann  v.  City  of  St.  Louis, 
121  Mo.  523,  26  S.  W.  687;  Weger 
V.  Delran,  61  N.  J.  L.  224,  39  Atl. 
730. 


1870  Eeal  Peoperty.  [§  482 

be  sustained  upon  a  different  theory,"^  and  it  is 
unnecessary,  in  such  a  case,  to  introduce  any  reference 
to  tlie  doctrine  of  dedication.  Many  of  the  cases,  how- 
ever, which  assert  this  doctrine  of  dedication  by  sales 
with  reference  to  a  plat,  involve  the  rights  of  the 
public  generally,  or  of  the  municipality  as  representa- 
tive of  the  public,  and  that  such  sales  do  usually  in- 
volve a  dedication  in  accordance  with  the  plat  may 
be  regarded  as  settled  in  most,  if  not  all,  of  the  states. 
It  is  to  be  regretted  that,  of  the  great  number  of  cases 
in  which  a  dedication  by  sales  in  accordance  with  a 
plat  is  asserted,  none,  so  far  as  the  writer  has  ob- 
served, undertake  to  explain  why  such  sales  should 
operate  as  effecting  a  dedication,  why,  for  instance,  the 
fact  tliat  the  owner  of  land  has  sold  two  or  three  lots 
with  reference  to  a  plat,  and  has  thereby  subjected  him- 
self to  obligations  in  favor  of  the  purchasers  as  re- 
gards the  streets  depicted  on  the  plat,  is  to  be  re- 
garded as  showing  an  intention  to  create  rights  in  such 
streets  in  favor  of  the  public  generally.  The  doctrine 
had  its  origin,  it  may  be  suspected,  in  a  failure  to 
distinguish  between  the  rights  of  the  individual  pur- 
chasers and  of  the  public,  as  when  the  courts  said,  as 
they  have  not  infrequently  said,  that  the  sale  of  lots 
with  reference  to  a  plat  involves  a  dedication  of  the 
lots  in  favor  of  the  purchasers,  thus  ignoring  the  well 
settled  principle  that  land  cannot  be  dedicated  for  the 
benefit  of  particular  members  of  the  public.*'^  The  ex- 
pression "dedication"  having  thus  been  introduced  to 
express  the  result  of  such  sales  in  favor  of  individuals, 
it  was  to  be  expected  that,  as  time  went  on,  such  sales 
should  come  to  be  regarded  as  effecting  a  dedication  for 
all  purposes.^2 

60.  Ante,  §  366(b).  62.     That    such    sales    effect    a 

61.  See  the  remarks  in  People  dedication  appears  to  be  negativ- 
V.  Reed,  81  Cal.  70,  15  Am.  St.  ed  in  Washington.  See  Smith  v. 
Rep.  22,  22  Pac.  474;  Prescott  v.  King  County,  80  Wash.  273,  141 
Edwards,  117  Cal.  298,  59  Am.  St.  Pac.   695. 

Rep.   186,   49   Pac.   178. 


§  482]  Dedication.  1871 

Description  with  reference  to  street.     That  in 

selUng  or  conveying  land,  it  is  described  by  reference 
to  a  suppositious  street,  or  extension  of  a  street,  which 
has  not  actually  been  opened,  does  not,  it  seems,  neces- 
sarily involve  a  dedication  of  land  for  such  street,<52a 
though  it  would  no  doubt  ordinarily  give  the  pur- 
chaser a  right  of  way  in  the  land  so  referred  to  as  a 
street,  if  the  vendor  is  the  owner  thereof.''^ 

Statutory  dedication.  In  the  statutes  author- 
izing the  record  of  a  plat  of  a  subdivision  of  land  made 
by  the  owner  thereof,*^'^''  there  is  usually  a  provision 
that  the  strips  or  pieces  of  land  which  the  owner,  as 
indicated  on  the  plat,  intends  shall  be  used  by  the  public 
for  streets,  parks,  and  the  like,  shall  be  regarded  as 
dedicated  to  the  public.  These  statutes  usually  contain 
minute  requirements  in  regard  to  the  form  and  authenti- 
cation of  the  plat,  and,  if  these  requirements  are  not 
complied  with,  the  plat  does  not  constitute  a  statutory 
dedication,  though  it  may,  in  connection  with  sales  of 
land  with  reference  thereto,  or  other  acts,  constitute 
evidence  of  a  common-law  dedication."* 

A  statutory  dedication  by  the  recording  of  a  plat 
differs  from  a  common-lsiw  dedication  in  that  it  in- 
volves a  direct  conveyance  of  the  legal  title,  the  owner- 
ship of  the  land,  to  that  extent,  to  the  municipality, 
while  in  the  case  of  a  common-law  dedication  the  legal 
ownership   is   not   affected,   there   being  vested   in   the 

62a.     Hoole    v.    Atty.    Gen.,    22  238    Pa.    504,    86    Atl.    278;    Felin 

Ala.    190;    Mobile    v.    Fowler,    147  v.    Philadelphia,    241    Pa.    164,    88 

Ala.    403,    41    So.    468    (semble) ;  Atl.  421;  Rathmun  v.  Halfman,  58 

Cerf   V.    Pfleging,   94   Cal.    131,   29  Tex.    551.      Contra,    Flershelm    v. 

Pac.    417;    Owensboro    v.    Muster,  Baltimore,    85    Md.    489.    ;J6    Atl. 

Ill  Ky.  856,  64  S.  W.  840;   City  of  1098;     Philadelphia,    B.    &    W.    R. 

Omaha  v.  Hawver,   49   Neb.   1,  67  Co.  v.  Baltimore,  124  Md.  635,  93 

N.  W.  891;   Atlantic  City  v.  Groff,  Atl.    146;    Whyte    v.    City    of    St. 

68  N.  J.  L.  670,  54  Atl.  800;  In  re  l^ouis,   153  Mo.  80,   54   S.  W.   478. 

Eleventh    Avenue,    81    N.    Y.    436;  63.     Ante,  §  366(a). 

Jones   V.  Teller,   65  Ore.   328,   133  63a.     Ante,    §    443. 
Pac.    354:    Tesson    v.    Porter    Co., 


1872 


Keal  Peopebty. 


b)  483 


public  merely  a  privilege  of  iiser.^'^  In  case  there  is  no 
municipality  in  existence  at  the  time  of  a  statutory 
dedication,  the  fee,  it  has  been  said,  is  in  abeyance  until 
a  municipality  is  created.^^ 

§  483.  Acceptance.  In  order  that  a  dedication,  or 
rather,  an  offer  of  dedication,  may  be  effective  for 
the  purpose  of  imposing  burdens  and  liabilities  upon 
the  public  authorities  as  regards  the  condition  and  re- 
pair of  the  property,  it  is  ordinarily  necessary  that  it 
be  accepted  by  the  public,^'^  and,  by  numerous  decisions, 
an  acceptance  is  also  necessary  in  order  to  render  the 
offer  of  dedication  irrevocable  by  the  dedicator,^^  and 
in  order  to  give  to  the  municipality  rights  of  control  as 
regards  the  property.''^     In  one  state  it  has  been  de- 


64.  See  Marsh  v.  Village  of 
Fairbury,  163  111.  401,  45  N.  E. 
236;  Ruddlman  v.  Taylor,  95 
Mich.  547,  55  N.  W.  376;  Hatton 
V.  St.  Louis,  264  Mo.  634,  175  S. 
W.  888;  Kaufman  v.  Butte,  48 
Mont.  400,  138  Pac.  770;  Pills- 
bury  V.  Alexander,  40  Neb.  242, 
58  N.  W.  859;  Incorporated  Vil- 
lage of  Fulton's  Lessee  v.  Mehren- 
feld,  8  Ohio  St.  440;  Kee  v. 
Satterfield,  46  Okla.  208.  149  Pac. 
243;  McCoy  v.  Thompson,  84  Ore. 
141,  164  Pac.  589;  Thorndike  v. 
Milwaukee  Auditorium  Co.,  143 
Wis.   1,  126  N.  W.  881. 

65.  Post,   §   486. 

66.  Winthrop  Harbor  v.  Gur- 
des,   257   111.   596,    101   N.   E.   199. 

67.  City  &  County  of  San  Fran- 
cisco V.  Calderwood,  31  Cal.  585, 
91  Am.  Dec.  545;  City  of  Denver 
V.  Denver  &  S.  F.  Ry.  Co.,  17 
Colo.  583,  31  Pac.  338;  Rhodes  v. 
Town  of  Brightwood,  145  Ind.  21, 
43  N.  E.  942;  Maine  v.  Brad- 
bury, 40  Me.  154;  Ogle  v.  City  of 
Cumberland,  90  Md.  59,  44  Atl. 
1015;    Downend    v.    Kansas    City, 


156  Mo.  60,  56  S.  W.  902;  State  v. 
Atherton,  16  N  .H.  203;  Atlantic 
&  S.  R.  Co.  V.  State  Board  of 
Assessors  of  New  Jersey,  80  N. 
J.  L.  83,   77  Atl.   609. 

68.  City  of  Los  Angeles  v.  Mc- 
Collum,  156  Cal.  148,  23  L.  R.  A. 
(N.   S.)    378,  103  Pac.  914;    Riley 

.V.  Hammel,  38  Conn.  574;  H.  A. 
Hillmer  Co.  v.  Behr,  264  111.  568, 
106  N.  E.  481;  Town  of  Kenwood 
Park  V.  Leonard,  177  Iowa,  337. 
158  N.  W.  655;  Whittington  v. 
Comm'rs  of  Crisfield,  121  Md.  387, 
88  Atl.  232;  Hayden  v.  Stone,  112 
Mass.  346;  MighiU  v.  Town  of 
Rowley,  224  Mass.  586,  113  N.  E. 
569;  Price  v.  Town  of  Brecken- 
ridge,  92  Mo.  378,  5  S.  W.  20; 
Buffalo  V.  Delaware,  L.  &  W.  R. 
Co.,  190  N.  Y.  84,  82  N.  E.  513; 
Simmons  v.  Cornell,  1  R.  I.  519; 
Spokane  v.  Security  Sav.  Soc,  82 
Wash.  91,  143  Pac.  435;  Univer- 
sity of  Our  Lady  of  the  Sacred 
Heart  v.  City  of  Watertown,  150 
Wis.   505,   137   N.   W.   754. 

69.  Schmidt  v.  Spaeth,  82  N. 
J.  L.  83  Atl.  242;   Pope  v.  Clarke, 


§  483] 


Dedication. 


1873 


cided  that  the  death  of  the  dedicator  before  acceptance 
milhfies  the  dedication.'^ 

Some  of  the  statutes  providing  for  a  dedication  by 
the  record  of  a  plat  have  been  construed  as  not  in- 
volving any  necessity  of  an  acceptance.-^i  And  ac- 
cording to  some  decisions  there  is  a  presumption  of 
acceptance  of  a  dedication  which  is  beneficial  in  char- 
acter,'-^ a  view  which  in  effect  dispenses  with  the  neces- 
sity of  an  acceptance  in  such  a  case.  Furthermore  bv 
the  weight  of  authority,  a  dedication  effected  by  sales 
with  reference  to  a  plat'^  cannot  be  revoked  even 
though  there  has  been  no  indication  of  acceptance, "^^  a 


122  Md.  1,  89  Atl.  387;  Moore  v. 
Fowler,  58  Ore.  292,  114  Pac. 
472;  Baltimore  v.  Broumel,  86 
Md.  153,  37  Atl.  648;  Phillips  v. 
Stamford,  81  Conn.  408.  71  Atl. 
361;  Gilder  v.  City  of  Breuham, 
67   Tex.   345,   3   S.   W.   309. 

70.  People  v.  Johnson,  237  111. 
237,  86  N.  E.  676;  Chicago  M.  & 
St.  P.  Ry.  Co.  V.  Chicago,  264  111. 
24,   105   N.   E.   702. 

71.  Town  of  Lake  View  v.  Le 
Bahn,  120  111.  92,  9  N.  E.  260; 
Osage  City  v.  Larkin,  40  Kan. 
206,  2  L.  R.  A.  56,  10  Am.  St. 
Rep.  186,  19  Pac.  658;  Keyes  v. 
Excelsior,  126  Minn.  456, 148  N.  W. 
501;  Town  of  Otterville  v.  Bente, 
240  Mo.  291,  144  S.  W.  822;  Weep- 
ing Water  v.  Reed,  21  Neb.  261, 
31  N.  W.  797;  Carter  v.  City  of 
Portland,  4  Ore.  339;  Sowadzki  v. 
Salt  Lake  County,  36  Utah,  127, 
104  Pac.  Ill;  Meachem  v.  City  of 
Seattle,  45  Wash.  380,  88  Pac. 
628. 

72.  Archer  v.  Salinas  City,  93 
Cal.  43,  16  L.  R.  A.  145,  28  Pac. 
839;  Guthrie  v.  Town  of  New 
Haven,  ?,1  Conn.  308;  Poole  v. 
Commissioners     of     Rehoboth,     9 


Del.  Ch.  192,  80  Atl.  683;  Abbott 
V.  Cottage  City,  143  Mass.  521,  58 
Am.  Rep.  143,  10  N.  E.  325; 
Harrington  v.  Manchester,  76  N. 
H.  347,  82  Atl.  716.  See  Phillips 
V.  Stamford,  81  Conn.  408,  71  Atl 
361. 

Such  a  presumption  cannot,  it 
has  been  suggested  exist  in  the 
case  of  a  highway,  there  being 
liabilities  to  repair  in  connection 
therewith.  Abbott  v.  Cottage 
City,  143  Mass.  521,  58  Am.  Rep. 
143,  10  N.  E.  325;  Wayne  County 
V.  Miller,  31  Mich.  447.  But  It 
might,  it  would  seem,  even  then 
exist  for  purposes  other  than  of 
Imposing  a  liability  upon  the 
public.  See  Henderson  v.  Yea- 
man,  169  Ky.  503,  184  S.  W.  878; 
Harrington  v.  Manchester,  76  N. 
H.   347,   82   Atl.   716. 

73.  Ante,  §  482,  note  56. 

74.  Rulolph  V.  Birmingham 
188  Ala.  620,  65  So.  1006;  Brook- 
feld  V.  Block,  123  Ark.  153.  184 
S.  W.  449;  Davidow  v.  Griswold, 
23  Cal.  App.  188,  137  Pac.  619; 
Boise  City  v.  Hon.  14  Idaho,  272, 
94  Pac.  167;  HusfpII  v.  Lincoln. 
200  III.  511,  65  N.  E.  1088;   Louis- 


1874 


Real  Pkoperty. 


[§  483 


view  which  is  ordinarily  asserted  without  any  attemjot 
to  state  a  reason  for  such  an  exception  to  the  ordinary 
requirement  of  acceptance,  but  which  is  occasionally 
based  on  the  somewhat  unsatisfactory  theory  that  the 
individual  purchasers,  by  making  the  purchases,  ac- 
cept in  behalf  of  the  public  the  dedication  made  by  the 
sales  to  themJ^  It  would  rather  seem  that  it  is  be- 
cause of  the  creation  of  rights  in  the  individual  pur- 
chasers, which  rights  are  not  subject  to  subsequent  con- 
trol by  the  vendor,  and  of  the  association  which  ap- 
parently exists  between  the  creation  of  such  individual 
rights  and  the  asserted  dedication  in  favor  of  the  pub- 
lic,'''^^  that  the  vendor  has  been  regarded  as  unable  to 
revoke  the  dedication  thus  made. 

The  acceptance  of  the  dedication  may  be  by  formal 
action  on  the  part  of  the  state  or  municipality,  as  repre- 
senting the  public,"^^  but  this  is  not  usually  necessary. 


ville  V.  Mut.  Life  Ins.  Co.,  147 
Ky.  141,  738,  143  S.  W.  782,  145 
S.  W.  389;  Bartlett  v.  Bangor,  67 
Me.  460;  Baltimore  v.  Frick,  82 
Md.  77,  33  Atl.  435;  Harrison 
County  Supervisors  v.  Seal,  66 
Miss.  129,  3  L.  R.  A.  659,  14  Am. 
St.  Rep.  545,  5  So.  622;  Shearer 
V.  City  of  Reno,  36  Nev.  443,  136 
Pac.  705;  Darling  v.  Jersey  City, 
73  N.  J.  Eq.  318,  67  Atl.  709; 
Revard  v.  Hunt,  29  Okla.  835,  119 
Pac.  589;  Baker  City  Mut.  Irr. 
Co.  V.  Baker  City,  58  Ore.  306,  110 
Pac.  392,  113  Pac.  9;  City  of  Pitts"- 
burg  V.  Epping  Carpenter  Co.,  194 
Pa.  318,  45  Atl.  129;  Martinez  v. 
City  of  Dallas,  102  Tex.  54,  109  S. 
W.  287,  113  S.  W.  1167.  Contra, 
Gathright  v.  State,  129  Ark.  339, 
195  S.  W.  1069;  Prescott  v.  Ed- 
wards, 117  Cal.  298,  59  Am.  St. 
Rep.  186,  49  Pac.  178;  Eltinge  v. 
Santos,  171  Cal.  278.  152  Pac.  915; 
Kimball  v.   Chicago,  253   111.   105, 


97  N.  E.  257;  Rose  v.  Elizabeth- 
town,  275  111.  167,  114  N.  E.  14; 
Steinauer  v.  Tell  City,  146  Ind. 
490,  45  N.  E.  1056;  Clendenin  v. 
Maryland  Construction  Co.  86  Md. 
80,  37  Atl.  709;  Canton  Co.  v. 
Baltimore,  106  Md.  69,  11  L.  R. 
A.  (N.  S.)  129,  66  Atl.  681;  Vil- 
lage of  Grandville  v.  Jenison,  84 
Mich.  54,  47  N.  W.  600;  State  v. 
Hamilton,  109  Tenn.  276,  70  S. 
W.  619. 

75.  Sanford  v.  Meridian,  52 
Miss.  383;  Christian  v.  Eugene, 
49  Ore.  170,  89  Pac.  419;  Highland 
Realty  Co.  v.  Avondale  Land  Co., 
174  Ala.  326,  56  So.  716. 

75a.     Ante,   §   482   notes  61,   62. 

76.  Little  Rock  v.  Wright,  58 
Ark.  142,  23  S.  W.  876;  City  of 
Eureka  v.  Armstrong,  83  Cal.  623, 
22  Pac.  928,  23  Pac.  1085;  White 
V.  Smith,  37  Mich.  291;  State  v. 
Atherton,  16  N.  H.  203;  State  v. 
City  of  Elizabeth,  35  N.  J.  L.  359; 


§  483] 


Dedication. 


1875 


Any  action  on  the  part  of  the  municipality  showing  that 
it  has  assumed  control  of  the  land  dedicated  is  suf- 
ficient evidence  of  acceptance.'"  Eepairs  or  improve- 
ments made  by,  or  under  the  authority  of,  officers  who 
have  general  charge  of  highways,  and  power  to  lay  them 
out,  may  show'  an  acceptance  of  the  dedication  of  a 
highway,"^^^  though  repairs  made  by  a  merely  subordi- 
nate officer  would  not  have  such  an  effect."^  A  mere 
user  by  the  public  is  sufficient,  according  to  the  weight 
of  authority,  to  justify  a  finding  that  there  w^as  an  ac- 
ceptance for  most  purposes,^*^  though  not,  according  to 
some  cases,  for  the  purpose  of  imposing  any  burden  or 


Bellenot  v.  Richmond,  108  Va. 
314,  61  S.  E.  785.  In  Virginia 
there  must,  it  appears,  be  an  ac- 
ceptance of  record.  Terry  v.  Mc- 
Clung,  104  Va.  599,  52   S.  E.  355. 

77.  Brewer  v.  City  of  Pine 
Bluff,  80  Ark.  489,  97  S.  W.  1034; 
Penick  v.  Morgan  County,  131  Ga. 
385,  62  S.  E.  300;  People  v.  John- 
son, 237  111.  237,  86  N.  E.  676; 
Burroughs  v.  City  of  Cherokee, 
134  Iowa,  429,  109  N.  W.  876; 
Mulligan  v.  McGregor,  165  Ky. 
222,  176  S.  W.  1129;  Lyons  v. 
Mullen,  78  Neb.  151,  110  N.  W. 
743;  In  re  Hunter,  163  N.  Y.  542, 
57  N.  E.  735;  Palmer  v.  East 
River  Gas  Co.,  115  N.  Y.  App. 
Div.  677,  101  N.  Y.  Supp.  347; 
Jeffress  v.  Town  of  Greenville,  154 
N.  C.  490,  70  S.  E.  919;  Cincinnati 
&  L.  Ry  Co.  V.  Carthage,  36  Ohio 
St.  631;  Herrington  v.  Booth  & 
Flinn,  252  Pa.  70,  97  Atl.  178; 
Doyle  V.  City  of  Chattanooga,  128 
Tenn.  433,  4  N.  C.  C.  A.  167,  161 
S.  W.  997;  Spencer  v.  Arlington, 
49  Wash.  121,  94  Pac.  904. 

78.  Town  of  Lake  View  v.  Le 
Bahn,  120  111.  92,  9  N.  E.  269; 
Town  of  Fowler  v.  Linguist,   138 


Ind.  566,  37  N.  E.  133;  Wright 
V.  Tukey,  3  Cush.  (Mass.)  290; 
Kaime  v.  Harty,  73  Mo.  316;  Du 
Bois  Cemetery  Co.  v.  Griffin,  165 
Pa.  St.  81,  30  Atl.  840;  Folsoni  v. 
Town  of  Underbill,  36  Vt.  580. 

79.  State  v.  Bradbury,  40  Me. 
154;  White  v.  Bradley,  66  Me. 
254. 

80.  Stewart  v.  Conley,  122  Ala. 
179,  27  So.  303;  Tranmell  v.  Brad- 
ford—(Ala.)— 73  So.  894;  Hall  v. 
Kauffman,  106  Cal.  451,  39  Pac. 
756;  City  of  Denver  v.  Denver  & 
S.  F.  Ry.  Co.,  17  Colo.  583,  31  Pac. 
338;  Phillips  v.  City  of  Stamford, 
81  Conn.  408,  22  L.  R.  A.  (N.  S.) 
1114,  71  Atl.  361;  Parsons  v. 
Trustees  of  Atlanta  University,  44 
Ga.  529;  Consumers'  Co.  v.  Chica-. 
go,  268  111.  113,  108  N.  E.  1017; 
Pittsburg,  C.  C.  &  St.  Ry.  Co. 
V.  Warrum,  42  Ind.  App.  217,  82 
N.  E.  9:54,  84  N.  E.  356;  Raymond 
V.  Wichita,  70  Kan.  523,  79  Pac 
323;  Riley  v.  Buchanan,  116  Ky. 
625,  63  L.  R.  A.  642.  3  Ann.  Cas. 
788.  76  S.  W.  527;  Cnahwa  v. 
Williamsport.  117  Md.  306.  83  Atl. 
389;  Atty.  Gen.  v.  Abbott,  154 
Mass.  323,  13   L.  R.  A.  251.  28  N. 


lcS76 


Eeal,  Property. 


[§  m 


liability  on  the  municipality.^'^  Occasionally  the  view 
has  been  asserted  that,  in  order  that  acceptance  may 
be  inferred  from  user,  for  any  purpose  whatsoever, 
the  user  must  have  continued  for  the  prescriptive 
period.^^  And  in  some  cases  the  question  of  the  suf- 
ficiency of  user  for  this  purpose  has  been  said  to  be  to  a 
great  extent  dependent  on  whether  the  public  con- 
venience would  suffer  bv  a  cessation  of  the  user.^^ 


E.  346;  Minium  v.  Sole!,— (Mo.)  — 
183  S.  W.  1037;  Cassidy  v.  Sulli- 
van, 75  Neb.  847,  106  N.  W.  1027; 
Schmidt  v.  Spaeth,  82  N.  J.  L. 
575,  83  Atl.  242;  Montgomery  v. 
Somers,  50  Ore.  259,  90  Pac.  674; 
Com.  V.  Moorehead,  118  Pa.  344, 
4  Am.  St.  Rep.  599,  12  Atl.  424; 
Watertown  v.  Troeh,  25  S.  D.  21, 
125  N.  W.  501;  Morris  v.  Blunt, 
49  Utah,  243,  161  Pac.  1127; 
Seattle  v.  Hinckley,  67  Wash.  273, 
121  Pac.  444. 

In  some  states,  however,  ptiblic 
user  is  not  regarded  as  sufficient 
evidence  of  acceptance,  for  any 
purpose.  Palmer  v.  Palmer,  150 
N.  Y.  139,  55  Am.  St.  Rep.  653,  44 
N.  E.  966;  Smith  v.  Smythe,  197 
N.  Y.  457,  35  L.  R.  A.  (N.  S.) 
524,  90  N.  E.  1121;  Cincinnati  & 
M.  V.  R.  Co.  V.  Roseville,  76  Ohio 
St.  108,  81  N.  E.  178;  Lynchburg 
Traction  &  Light  Co.  v.  Guill,  107 
Va.  86,  57  S.  E.  644  (semble); 
Chapman  v.  Sault  Ste.  Marie,  146 
Mich.  23,  109  N.  W.  53. 

81.  Pennick  v.  Morgan  County, 
131  Ga.  385,  62  S.  E.  300;  People 
V.  Commissioners,  52  111.  498; 
Cochran  v.  Town  of  Shepherds- 
ville,— (Ky.)— 43  S.  W.  250;  May- 
berry  V.  Standish,  56  Me.  342; 
Kennedy  v.  Mayor  and  City 
Council  of  Cumberland,  65  Md. 
514,  57  Am.  Rep.  346,  9  Atl.  234; 


Ogle  V.  City  of  Cumberland,  90 
Md.  59,  62,  44  Atl.  1015;  Downend 
V.  Kansas  City,  156  Mo.  60,  51  L. 
R.  A.  170,  56  S.  W.  902;  Gilder 
V.  City  of  Brenham,  67  Tex.  345, 
3  S.  W.  309;  Tower  v.  Rutland,  56 
Vt.  28;  Clarendon  v.  Rutland  R. 
Co.,  75  Vt.  6,  52  Atl.  1057;  Hast 
V.  Piedmont  &  C.  R.  Co.,  52  W. 
Va.  396,  44  S.  E.  155;  See  Stevens 
V.  Nashua,  46  N.  H.  192.  Contra, 
Ivey  V.  City  of  Birmingham,  190 
Ala.  196,  67  So.  506;  Guthrie  v. 
New  Haven,  31  Conn.  308; 
Phillips  V.  Stamford,  81  Conn. 
408,  71  Atl.  361  (dictum);  Benton 
V.  St.  Louis,  217  Mo.  687,  129  Am-. 
St.  Rep.  560,  118  S.  W.  418;  Ack- 
erman  v.  Williamsport,  227  Pa. 
591,  76  Atl.  421;  Kniss  v.  Du- 
quesne  Borough,  255  Pa.  417,  100 
Atl.  132;  Caston  v.  City  of  Rock 
Hill,  107  S.  C.  124,  92  S.  E.  191; 
Doyle  V.  Chattanooga,  128  Tenn. 
433,  161  S.  W.  997   ((licttim). 

82.  People  v.  Johnson,  237  111. 
237,  86  N  E.  676;  Whittington  v. 
Comm'rs  of  Crisfield,  121  Md. 
387,   88   Atl.   232. 

83.  Ivey  v.  City  of  Birming- 
ham, 190  Ala.  196,  67  So.  506; 
San  Francisco  v.  Carnavan,  42 
Cal.  541;  Benton  v.  St.  Louis, 
217  Mo.  687,  129  Am.  St.  Rep.  561, 
118  S.  W.  418;  Pence  v.  Bryant, 
54   W.  Va.   263,   46    S.   E.   275. 


§  483] 


Dedicatiox. 


18; 


The  question  whether  there  has  been  an  acceptance 
IS,  like  that  of  the  offer  of  dedication,  ordinarily  one 
of  fact.s^ 

It  is  not  infrequently  said  that  the  acceptance  of 
a  dedication  must  take  place  within  a  reasonable  time, 
or  that  the  public  has  a  reasonable  time  for  acceptance.*^ 
"What  is  a  reasonable  time  appears  to  be  a  question  of 
fact  in  each  particular  case^'^  and  is  to  be  determined, 
to  some  extent  at  least,  by  the  necessity  or  desirability 
of  the  public  use  of  the  land  dedicated,  the  public  beino- 
under  no  obligation  to  accept  the  dedication  before  con^ 
ditions  are  ripe  for  its  utilization  of  the  land.^'  The 
delay  of  acceptance,  to  render  it  nugatory,  nmst,  it  has 
been  said,  be  for  such  a  length  of  time  and  under  such 


84.  City  of  Hartford  v.  New 
York  &  N.  E.  R.  Co.,  59  Conn. 
250,  22  Atl.  37;  Grube  v.  Nichols, 
36  111.  92;  Flack  v.  Village  of 
Green  Island,  122  N.  Y.  107,  25  N. 
267;  Downend  v.  Kansas  City,  71 
Mo.  App.  529;  Folsom  v.  Town  of 
Underhill,   36   Vt.   580. 

85.  People  v.  Reed,  81  Cal.  70, 
91  Am.  Dec.  542,  22  Pac.  474; 
Rose  V.  Elizabethtown,  275  III. 
167,  114  N.  E.  14;  Town  of  Ken- 
wood Park  V.  Leonard,  177  Iowa, 
337,  158  N.  W.  655;  Field  v. 
Manchester,  32  Mich.  279;  Briel 
V.  City  of  Natchez,  48  Miss.  433; 
Ramstad  v.  Carr,  31  N.  D.  504, 
L.  R.  A.  1916B,  1160,  154  N.  W. 
195. 

86.  H.  A.  Hillmer  Co.  v.  Behr. 
264  111.  568,  106  N.  E.  481;  Ken- 
wood Park  V.  Leonard,  177  Iowa, 
377,  158  N.  W.  655;  Chafee  v. 
City  of  Aiken,  57  S.  C.  507,  35  S. 
E.  800.  So  it  is  said  that  the 
acceptance  of  the  dedication  need 
not  be  within  any  particular  time. 
Henderson  v.  Yeaman,  169  Ky. 
603,     184     S.     W.    878;     Beale    v. 


Takoma    Park,    130    Md.    297,    100 
Atl.    379. 

In  Christopherson  v.  Incorpo- 
rated Town  of  Forest  City,  178 
Iowa,  893,  160  N.  W.  691,  it  was 
held  that  an  acceptance  thirty 
years  after  the  dedication  and 
twenty  years  after  the  fencing 
in  of  the  property  was  too  late. 
And  in  People  v.  Reed,  81  Cal. 
70,  91  Am.  Dec.  542,  22  Pac.  474, 
a  like  view  was  taken  of  an  ac- 
ceptance twenty-one  years  after 
the  dedication.  And  in  Kelley 
V.  Jones,  110  Me.  360,  86  Atl. 
252,  of  an  acceptance  eighty  years 

after  the   dedication. 

87.     Lee  v.  Harris,  206  111.   128. 
97    Am.    St.    Rep.    176,    69    N.    E. 

230;      McClenehan     v.     Town     of 

Jesup,   144    Iowa,   352,    120   N.   W. 

74;     City    of    Meridian    v.    Poole. 

88  Miss.  108,  40  So.  548;  Meier  v. 

Portland    Cable    Ry.    Co..    16    Ore. 

500,  1   L.  R.  A.  856,   19  Pac.  610; 

City     of     Ashland     v.     Chicago    &  * 

N.    W.    Ry.   Co.,    105   Wis.    398,   SO 

N.    W.    1101. 


1878  Real  Peoperty.  [§  483 

circumstances  as  clearly  to  indicate  an  abandonment 
of  any  intention  to  accept  the  offer  of  dedication.^'^ 

Since  a  municipality  has  authority,  in  the  ordinary 
case,  to  accept  a  dedication  in  behalf  of  the  public,  the 
question  whether,  when  the  dedication  is  made  by  the 
municipality,  an  acceptance,  by  public  user  or  other- 
wise, is  necessary  to  complete  the  dedication,  is  one 
of  some  difficulty.^^^  And  the  same  question  may  arise 
in  coruiection  with  a  dedication  by  the  United  States  or 
a  state.^^  No  clear  and  harmonious  rule  appears  to 
exist  in  this  regard. 

The  question  whether  the  dedication  of  a  highway 
has  been  accepted  as  regards  its  entire  breadth  or 
length  by  reason  of  repairs  on  part  only  of  its  breadth 
or  length,  or  of  public  user  of  such  part  only,  would 
seem  to  be  a  question  of  fact,  to  be  determined  with 
reference  to  the  circumstances  of  the  case,  with  a  pre- 
sumption perhaps,  by  the  weight  of  authority,  in  favor 
of  the  acceptance  of  the  whole  way  as  dedicated.^*' 

88.  Ramstad  v.  Carr,  31  N.  D.  by  the  United  States  appears  to 
504,  L.  R.  A.  1916B,  1160,  154  N.  be  assumed  in  WeUs  v,  Penning- 
W.  195.  And  see  129  Am.  St.  ton  County,  2  S.  D.  1,  39  Am.  St. 
Rep.  at  p.  619,  note  to  Benton  v.  Rep.  758,  48  N.  W.  3C5;  Hatch 
City  of  St.  Louis.  Bros.  Co.   v.   Black,   25   Wyo.   109, 

88a.     That  acceptance  is   neces-  165  Pac.   518.     So  in  the  case  of 

sary    in    such    a    case,    see    San  a  dedication  by  the  state.     Reilly 

Francisco  v.   Calderwood,   31   Cal.  v.    City    of    Racine,    51    Wis.    526. 

585,   91   Am.   Dec.    542;    Curtis  v.  8  N.  W.  417. 

Hoyt,  19   Conn.  154,   48  Am.  Dec.  90.     People    v.    Langenoir, — Cal. 

149;    Board    of   Trustees   of   Phil-  App.,— 142     Pac.     888;      Ellis     v. 

adelphia  INIuseums  v.  Trustees  of  City   of   Hazlehurst,   138   Ga.    181, 

the    University    of    Pennsylvania,  75   S.   E.  99;    McDonald  v.   Stark, 

251  Pa.  125,  96  Atl.  126.     Contra,  176  111.  456,  52  N.  E.  37;   Sullivan 

Attorney  Gen.  v.  Tarr,  148  Mass.  v.  Tichenor,  179  lU.  97,  53  N.  E. 

309,    2    L.    R.    A.    87,    19    N.    B.  561;   Village  of  Augusta  v.  Tyner, 

358.'     In  Knox  v.  Roehl,  153  Wis.  197    lU.   242,   64   N.   E.    378;    Hall 

239,    140    N.    W.    1121,    it    is    said  v.     Breyfogle,     162     Ind.    494,     70 

that  only  slight  proof  of  accept-  N.    E.    883;     Kuehl    v.    Town    of 

ance   is    necessary    in   such   case.  Bettendorf,    179    Iowa,    1,    161    N. 

89.  That  acceptance  is  neces-  W.  28;  Crosby  v.  City  of  Green- 
sary  in  the  case  of  a  dedication  ville,    183    Mich.    452,    150   N.    W. 


§  483:] 


Dedication?. 


1879 


In  the  case  of  a  dedication  for  streets  by  the  re- 
cord of  a  plat,  or  the  sale  of  lots  with  reference  to  a 
jjlat,  the  acceptance  of  one  or  more  of  the  streets  has 
occasionally  been  regarded  as  involving  an  acceptance 
of  all,  in  the  absence  of  a  showing  of  a  contrary  inten- 
tion.^ ^  It  has  in  one  state  been  stated  that  the  ac- 
ceptance of  one  street  does  not  show  acceptance  of 
all,^2  and  that  the  acceptance  of  those  streets  in  one 
part  of  the  land  platted  does  not  show  acceptance  of 
those  in  another  part,''^  but  that  the  acceptance  of  the 
most  important  streets,^^  or  of  most  of  the  streets,^^ 
justifies  an  inference  that  all  have  been  accepted. 


246;  Kennedy  v.  Le  Van,  23 
Minn.  513;  Triplett  Twp.  v.  Mc- 
Phearson,  172  Mo.  App.  369,  157 
S.  W.  857;  City  of  Pittsburg  v. 
Epping-Carpenter  Co.,  194  Pa.  St. 
318,  45  Atl.  129;  Chaffee  v.  Aiken, 
57  S.  C.  507,  35  S.  E.  800.  In 
Borough  of  South  Amboy  v.  New 
York  &  L.  B.  R.  Co.,  66  N.  J. 
L.  623,  50  Atl.  368,  it  is  said 
that  the  dedication  must  be  ac- 
cepted in  whole,  if  accepted  at 
all. 

On  the  other  hand  it  has  been 
quite  occasionally  decided  that, 
in  the  particular  case,  an  ac- 
ceptance as  to  the  whole  did 
not  result  from  repairs  on,  or  user 
of,  a  part  of  the  land  dedicated. 
Mobile  V.  Fowler,  147  Ala.  403, 
41  So.  468;  Hall  v.  Meriden,  48 
Conn.  416;  Kelsoe  v.  Oglethorpe, 
120  Ga.  951,  102  Am.  St.  Rep. 
138,  48  S.  E.  366;  Theissen  v. 
City  of  Lewiston,  26  Idaho,  505, 
144  Pac.  548;  Bell  v.  City  of 
Burlington,  68  Iowa,  296,  27  N. 
W.  245;  Wayne  County  v.  Miller, 
31  Mich.  447;  Commonwealth  v. 
Royce,  152  Pa.  St.  88,  25  Atl. 
162;  Ashland  v.  Chicago  &  N.  W. 


Ry.   Co.,   105  Wis.   398,   80  N.   W. 
1101. 

91.  Village  of  Lee  v.  Harris, 
206  111.  428,  99  Am.  St.  Rep. 
176,  69  N.  E.  230;  Parriott  v. 
Hampton,  134  Iowa,  157.  Ill  N. 
W.  440;  Heitz  v.  City  of  St.  Louis, 
110  Mo.  618,  19  S.  W.  735;  Derby 
V.  Ailing,  40  Conn.  410;  City  of 
Jackson  v.  Laird,  99  Miss.  476, 
55  So.  41.  But  see  Kelsoe  v. 
Oglethorpe,  120  Ga.  951,  102  Am. 
St.  Rep.  138,  48  S.  E.  366;  Wolf- 
skill  V.  Los  Angeles  County,  SC> 
Cal.  405,  24  Pac.  1094;  Kennedy 
V.  Mayor  and  City  Council  of 
Cumberland,  65  Md.  514,  57  Am. 
Rep.  346,  9  Atl.  234. 

92.  Rose  V.  Elizabethtown,  275 
111.  167,  114  N.  E.  14;  Casey  v. 
Chicago,  263  111.  147,  104  N.  E. 
1025. 

93.  Chicago,  M.  &  St.  P.  Ry. 
Co..   264   111.   24,   105   N.   E.   702. 

94.  Kimball  v.  Chicago,  253 
111.  105,  97  N.  K.  257;  Dewey  v. 
Chicago,  274  111.  268,  113  N.  E. 
599. 

95.  Consumers'  Co.  v.  Chicago, 
268   in.   113,   108   N.   E.   1017. 


1880  Eeal  Property.  [§  484 

§  484.  Dedicaticn  distinguished  from  estoppel.  It 
is  frequently  asserted  that  the  doctrine  of  dedication  is 
based  upon  the  theory  of  estoppel  in  pais,  but  this 
would  seem  to  be  incorrect.^^  The  doctrine  of  dedica- 
tion was  recognized  earlier  than  the  doctrine  of  esto^j- 
pel  in  pais,^'  and  the  former  doctrine  is  perfectly  com- 
prehensible without  reference  to  the  latter.  One  who 
indicates,  by  his  course  of  conduct,  an  intention  to  de- 
vote his  property  to  j)ublic  use,  thereby  effects  a  dedica- 
tion, just  as  one  who,  by  executing  an  instrument  of 
conveyance  in  favor  of  an  individual,  indicates  an  in- 
tention to  transfer  to  him  an  estate  in  land,  effects  such 
transfer.  In  neither  case  can  it  properly  be  said  that, 
because  the  expression  of  intention  in  accordance  with 
legal  requirements  results  in  effecting  the  intention,  an 
estoppel  in  pais  is  involved.  So  when  it  is  said,  as  it 
occasionally  is  said,  that  one  whose  acts  are  such  as 
to  show  an  intention  to  dedicate,  is  estopped  to  deny 
such  intention,  the  introduction  of  the  theory  of  estop- 
pel appears  entirely  unnecessary.  Such  a  case  in- 
volves merely  an  application  of  a  general  rule  that,  for 
legal  purposes,  one's  intention  is  such  as  his  acts  would 
lead  a  reasonable  man  to  believe  to  be  his  intention. ^^ 
The  only  case,  it  is  submitted,  in  which  it  is  at  all 
appropriate  to  refer  to  the  theory  of  estoppel  in  this 
connection  is  that,  above  referred  to,^^  of  a  dedication 
by  sales  with  reference  to  a  plat,  in  which  case  the  dedi- 
cation  appears   to   be,   in   some   way  not   explained,   a 

96.  As  is  well  stated  In  An-  2;  Ewart,  Estoppel,  p.  7.  As 
gell,   Highways,   §    156.  before     remarked     <^ante,     §     479, 

97.  The  doctrine  of  dedication  note  la),  the  doctrine  of 
was  recognized  in  express  terms  dedication  presumably  was  recog- 
in  Lade  v.  Shepherd,  2  Strange  nized  in  principle,  if  not  by  name, 
1004,  an  action  of  trespass,  decid-  early  in  the  history  of  English 
ed   anno   1735.     Estoppel   in  pais,  law. 

or  equitable  estoppel,  received  its  98.     See   4   Wigmore,   Evidence, 

first  explicit  recognition  in  courts  §     2413. 

of  law  in  the  nineteenth  century.  99.     Ante,   §   482,  note   56. 
See   Bigelow,   Estoppel,   ch.    18,    § 


§  485]  Dedication.  1881 

result  of  the  vendor's  asserted  estoppel,  as  against  the 
purchasers,  to  deny  the  existence  of  ways  and  spaces 
as  indicated  on  the  plat. 

Although,  as  just  stated,  the  doctrine  of  dedication 
is  properly  independent  of  that  of  estoppel,  the  fact 
that  the  public  have  been  allowed  to  utilize  the  land 
as  if  it  has  been  dedicated  to  public  use  may,  under 
particular  circumstances,  operate  to  prevent  or  estop 
the  owner  from  interrupting  such  use.  In  such  a  case 
the  court  is  quite  as  likely  to  state  that  the  user  of  the 
land  by  the  public  for  the  particular  puri>ose  shows  a 
dedication  for  that  purpose,  as  to  say  that  the  land- 
owner is  estopped  to  prevent  the  continuance  of  such 
user.  For  instance,  in  the  ca&e  of  land  which  has  been 
used,  without  dissent  by  the  owner,  for  the  purpose  of 
a  cemetery,  a  finding  of  dedication  is  no  doubt  usually 
based,  to  a  considerable  extent  at  least,  upon  considera- 
tions which  appertain  properly  to  the  doctrine  of  es- 
toppel rather  than  to  that  of  dedication.  A  dedication 
is  found  to  have  been  made  by  reason  of  circumstances 
which  would  properly  estop  the  owner  to  deny  that  it 
was  made.  For  the  purpose  of  the  particular  case  the 
confusion  of  the  two  doctrines  is  immaterial,  but  for 
the  purpose  of  scientific  discussion  it  is  much  to  be 
deprecated.^ 

§  485.     Qualified    and    conditional    dedication.      A 

dedication  may  be  made  subject  to  reservations  in  favor 
of  the  dedicator  or  to  restrictions  upon  the  freedom  of 
use  of  the  land  by  the  public.  Thus  it  has  been  held  that 
a  highway  may  be  dedicated,  to  be  used  only  at  certain 
seasons,^  or  subject  to  a  right  in  the  dedicator  oi-  in 
others  to  use  the  land  for  certain  ])urp()ses,  or  at  cer- 
tain times.^     And  the  dedication  of  a  liighway  may  be 

1.  See    the    admirable    discus-      Y.    347,    17    L.    R.    A.    454.    T2    N. 
sion    in    the   editorial    note    in    16      E.    78. 

Harv.  Law  Rev.  at  p.  128.  3.     Mercer   v.    Woodgate.    I..    R. 

2.  Hughes  V.  Bingham,  135  N.      5  Q.  B.  26;    Arnold   v.   Blaker,   I-. 


1882  Ekal  Property.  [§  485 

made,  not  for  general  highway  purposes,  but  for  use 
by  pedestrians  only,  or  for  a  certain  class  of  vehicles.* 
But  there  may  be  a  restriction  imposed  by  the  dedicator 
upon  the  control  or  user  of  the  land  by  the  public  so 
far  reaching  in  its  nature  as  to  be  inconsistent  with 
the  very  nature  and  purpose  of  a  dedication. 

In  cases  in  which  land  was  dedicated  for  a  highway, 
a  reservation,  in  favor  of  the  dedicator,  of  a  right  to 
locate  and  maintain,  or  to  enable  others  to  locate  and 
maintain,  railway  tracks  in  the  highway,  has  ordinarily 
been  regarded  as  valid,^  while  on  the  other  hand  a 
general  reservation  of  the  control  of  public  utilities 
in  connection  with  the  highway  has  not  been  upheld.^ 
A  stipulation  that  the  j)ublic  user  of  the  highway  shall 
be  subject  to  certain  specific  restrictions  on  the  power 
to  remove  trees  or  grass  from  parts  of  the  land  has 
been  supjDorted.'^  A  jDrovision,  in  connection  with  the 
dedication,  that  the  municipality  shall  make  certain 
improvements    has    been    given    effect    as    a    condition 

R.    6    Q.   B.    433;    City   of   Nobles-  Ayres  v.  Pennsylvania  R.  Co.,  48 

ville  V.   Lake   Erie   &   W.   R.   Co.,  N.    J.    L.    44,    57    Am.    Rep.    538, 

130   Ind.  1,  29   N.   E.   484;    City  of  3    Atl.    885;    52    N.    J.    L.    405,    20 

Dubuque  v.  Benson,  23  Iowa,  248;  Atl.    54;    Tallon    v.    Hoboken,    59 

Atlantic  City  v.  Associated  Real-  N.  J.  L.  383,  60  N.  J.  L.  212,  37 

ties  Corp.  73  N.  J.  Eq.  721,  17  Ann.  Atl.    895;     Oklahoma    City    &    T. 

Cas.    743,    70    Atl.    345;     City    of  R.   Co.   v.    Dunham,    39   Tex.    Civ. 

Cohoes    V.    President,    etc.,    Dela-  575,    88    S.    W.   849.     And   so,   ap- 

ware  &  H.   Canal  Co.,   134   N.   Y.  parently,  a  reservation  of  a  right 

397,  31  N.  E.  887.  to  place  a  canal   in  the   highway 

4.  Stafford  v.  Coyney,  7  Barn.  may  be  valid.  City  of  Cohoes  v. 
&  C.  257;  Home  Laundry  Co.  President,  etc.  Delaware  &  H. 
V.  Louisville,  168  Ky.  479,  182  Canal  Co.,  134  N.  Y.  397,  31  N. 
S.    W.    645;    Hemphill   v.    Boston,  E.  887. 

8    Cush.     (Mass.)     195;     Tyler    v.  6.     Jones    v.     Carter,     45     Tex. 

Sturdy,    108    Mass.    196;    Trustees  Civ.    App.    450,    101    S.    W.    514; 

of  Methodist  Episcopal  Church  of  Bradley    v.    Spokane    &    I.    E.    R. 

Hoboken  v.   City  of  Hoboken,  33  Co.,   79   Wash.   455,   140   Pac.   688. 

N.  J.  L.  13,  97  Am.  Dec.  696.  7.     Avis    v.    Borough    of    Vine- 

5.  Noblesville  v.  Lake  Erie  &  land,  56  N.  J.  L.  474,  23  L.  R.  A. 
W.  Ry.  Co.,  130  Ind.  1,  29  N.  E.  685,  28  Atl.  1039;  Young  v. 
484;  Arn  v.  Chesapeake  &  O.  Ry.,  Landis,  73  N.  J.  L.  266,  62  Atl. 
171     Ky.     157,     188     S.     W.     340;  1133. 


§  485]  Dedication.  1883 

precedent  to  the  vesting-  of  rights  iu  the  puhlic,^  as 
has  a  provision  that  otlier  owners  of  land  shall  dedicate 
for  the  same  public  purpose.^  A  stipulation  relieving 
the  dedicator  from  liability  for  aii}^  part  of  the  cost  of 
adapting  the  land  to  the  public  use  has  been  upheld.^'' 

That  a  stipulation  in  favor  of  the  dedicator,  made 
at  the  time  of  dedication,  is  invalid,  does  not  ordinarily 
invalidate  the  dedication.^ ^  But  a  stipulation  for  a 
right  to  revoke  the  dedication  has  been  regarded  as 
showing  an  intention  not  to  dedicate.^-  And  there  is. 
evidently  no  dedication  when  the  owner  of  the  land 
retains  the  power  to  determine  in  the  future  what  part 
of  the  land  shall  be  devoted  to  the  public  use.^-' 

Although,  by  a  statutory  dedication,  the  ownership 
of  the  land  dedicated  would  otherwise  be  vested  in  the 
municipality,^^  the  dedicator  may,  it  has  been  decided, 
by  an  express  provision  on  the  plat,  retain  the  owner- 
ship, a  right  of  user  merely  being  vested  in  the  public,' ^'^ 
and  he  may,  likewise,  it  seems,  expressly  retain  the 
minerals  in  the  land  dedicated,^^  the  ownership  of 
which  would  otherwise  be  vested  in  the  municipality.^" 

8.  People  V.  WiUiams,  64  Cal.  of  Charlestown,  4:5  W.  Va.  796, 
498.  2  Pac.  393;  Jenkins  County  28  S.  E.  831;  State  v.  Spokane 
V.  Dickey,  139  Ga.  91,  76  S.  E.  St.  Ry.  Co.,  19  Wash.  518,  41  L. 
856.  R.   A.    515,    67    Am.    St.    Rep.    739, 

9.  Peoples'    Gas   Light  &   Coke  53  Pac.  719. 

Co.  V.  Chicago,  255  111.  612,  99  N.  12.     San  Francisco  v.  Canavan, 

E.  703;   St.  Louis  v.  Meier,  77  Mo.  42  Cal.  541. 

13;      Jacobs      Pharmacy     Co.     v.  13.     Niagara    Falls    Suspension 

Luckie.  143  Ga.  457,  85  S.  E.  332.  Bridge  v.  Bachman,  66  N.  V.  261. 

10.  Perth  Amboy  Trust  Co.  v.  14.     Ante.  §  482,  note  64. 
Perth    Amboy,    75    N.    J.    L.    291,  15.     Dubuque     v.      Benson,      23 
68  Atl.  84.     See  the  comments  on  Iowa,  248. 

this  case   in    21    Harv.    Law    Rev.  16.     Brown  v.  City  of  Cartilage, 

at  p.   357.     Compare   Richards   v.  128  Mo.   10,  30  S.  W.  312;    Dubu- 

Cincinnati,  31  Ohio  St.  506.  que  v.  Benson,  23  Iowa,  248. 

11.  City  of  Noblesville  v.  Lake  17.  Des  Moines  v.  Hall.  24 
Erie  &  W.  R.  Co.,  130  Ind.  1,  29  Iowa,  234;  Zinc  Co.  v.  City  of 
N.  E.  484;  Des  Moines  v.  Hall,  24  La  Salle,  117  111.  411,  2  N.  K. 
Iowa,  234;  Richards  v.  Cincinnati,  406,  8  N.  E.  81;  Hawesvllle  v. 
31  Ohio  St.  506;    Riddle  v.  Town  Iliiwes'     Heirs.     6     Bush.      (Ky.) 


]884 


Eeal  Pkoperty. 


[§  486 


§  486.  Effect  of  dedication.  A  common  law  dedi- 
cation for  highway  purposes/^  or  even  for  a  park, 
common,  or  sqnare,^^  does  not  affect  the  ownership 
of  tlie  land,  but  merely  gives  to  the  public  a  right  of  nser 
therein.  When,  however,  land  is  dedicated  for  a  pur- 
pose which  excludes  the  idea  of  its  use  by  any  and  every 
individual,  as  in  the  case  of  a  dedication  for  a  school, 
church,  or  cemetery,  the  corporation  or  association 
which  carries  out  the  purpose  of  the  dedication  must 
have  an  exclusive  control  of  the  land  which  is  practi- 
cally equivalent  to  possession  thereof.^"  In  some  states 
the  view  has  been  taken  that  in  the  case  of  land  dedi- 
cated for  a  park,^^  or  even  for  a  highway ,^^  the  munici- 
pal corporation  which  controls  the  land  so  dedicated  in 
behalf  of  the  public  has  a  right  of  possession  therein 
which  entitles  it  to  maintain  ejectment  against  an  in- 
truder   thereon,    a   view    which    is    not    entirely    satis- 


232.  But  see  Leadville  v.  Bohii 
Mining  Co.,  37  Colo.  248,  8  L-  R- 

A.  (N.  S.)  422,  11  Ann.  Cas.  443, 
86  Pac.  1038. 

18.  Lade  v.  Shepherd,  2  Strange 
1004;  City  of  San  Francisco  v. 
Calderwood,  31  Cal.  585.  91  Am. 
Dec.  542;  Robbins  v.  White,  52 
Fla.  613,  42  So.  841;   Indianapolis, 

B.  &  W.  R.  Co.  V.  Hartley,  67 
III.  439;  Farwell  v.  Chicago,  247 
HI.  235,  93  N.  E.  168;  Wilder  v. 
City  of  St.  Paul,  12  Minn.  192; 
Charleston  Rice  Milling  Co.  v. 
Bennett,  18  S.  C.  254. 

19.  Cincinnati  v.  White,  6  Pet. 
(U.  S.)  431,  8  L.  R.  A.  452;  At- 
torney General  v.  Abbott,  154  Mass. 
323,  13  L.  R.  A.  251,  28  N.  E.  346; 
Porter  v.  International  Bridge  Co., 
200  N.  Y.  234,  93  N.  E.  716;  Pome- 
roy  V.  Mills,  3  Vt.  279,  23  Am.  Dec. 
207;  Raleigh  County  Sup'rs  v. 
Ellison,  8  W.  Va.  308. 

20.  It    has     accordingly    been 


decided  that  one  who  has  dedicat- 
ed land  for  a  cemetery  has  there- 
after no  such  right  to  possession 
of  the  land  as  to  be  entitled  to 
maintain  ejectment.  Campbell  v. 
City  of  Kansas,  102  Mo.  326,  10 
L.  R.  A.  593,  13  S.  W.  897; 
Hunter  v.  Trustees  of  Sandy  Hill, 
6    Hill.     (N.    Y.)     407. 

21.  Methodist  Episcopal  Church 
V.  Hoboken,  33  N.  J.  L.  13,  97 
Am.  Dec.  696;  Price  v.  Plain- 
field,  40  N.  J.  L.  608. 

22.  Visalia  v.  Jacob,  65  Cal. 
434,  52  Am.  Rep.  303,  4  Pac.  433; 
City  and  County  of  San  Fran- 
cisco V.  Grote,  120  Cal.  59,  41  L. 
R.  A.  335,  65  Am.  St.  Rep.  155, 
52  Pac.  127;  Lee  v.  Harris,  205 
111.  428,  99  Am.  St.  Rep.  176, 
69  N.  E.  230;  Winona  v.  Huff, 
11  Minn.  119;  Hoboken  Land  & 
Improvement  Co.  v.  Hoboken, 
36    N.    J.    L.    540;     Ocean    Grove 


§  ^^^^  Dedication.  1885 

factory  from  the  standpoint  of  principle.-^  It  is  some- 
what difficult  to  see  how  a  mere  right  of  user  in  the 
public  can  confer  on  the  municipality  a  right  of 
possession,  sufficient  to  sustain  ejectment,  it  being  con- 
ceded that  a  private  individual  having  a  mere  right  of 
user,  that  is,  an  easement,  can  have  no  such  right  ol 
possession.  Even  though  the  public  right  of  user  is 
of  such  character  and  extent  as  entirely  to  preclude 
any  user  of  the  land  by  the  dedicator,  or  by  his  suc- 
cessor in  interest,  it  seems  desirable,  for  the  purpose  of 
legal  theory,  to  deny  the  element  of  possession  to  a 
mere  right  of  using  the  land. 

The  statutes  in  regard  to  dedication  by  the  re- 
cording of  a  plat  frquently  provide  that  the  owner- 
ship of  the  land,  and  not  a  mere  right  of  user,  shall 
be  vested  in  the  municipality  in  trust  for  the  public.-* 
Under  such  a  statute  the  title  to  the  land  is  properly  to 
be  regarded  as  passing  by  way  of  grant  or  conveyance, 
rather  than  by  way  of  dedication,  as  the  term  was 
understood  at  common  law.  The  statute  makes  the 
plat  in  eifect  a  conveyance  of  the  land  which  purports  to 
be  devoted  to  j)ublic  use. 

AVhether  the  ownership  or  merely  a  right  of  user 
is  vested  in  the  public,  the  land  cannot  be  aliened  by 

Camp   Meeting  Ass'n   v.    BerthaH,  481,   50    Am.   Rep.   119,   21    N.    W. 

63   N.   J.  L.   312,   43   Atl.   887.  520. 

23.     For  contrary  decisions,  see  24.     See  Leadville  v.  Bohn  SUn. 

Savannah    v.    Steamboat    Co.,    R.  Co.,    37    Colo.    248,    86   Pac.    1038: 

M.   Charlt.    (Ga.)    342;    Covington  Gebhardt   v.   Reeves,    75    lU.    301; 

V.    Freking,    8    Bush.    (Ky.)    121;  City     of     Pella     v.     Scholte,     21 

Bay  County  v.  Bradley,  39  Midi.  Iowa,  463;   Hutchinson  v.  Danley, 

133,  33  Am.  Rep.  367;   Canton  Co.  88    Kan.    437,    129    Pac.    163;    VII- 

V.    City    of    Baltimore,    106    Md.  lage  of  Grandville   v.   Jenson,   84 

69,  66  Atl.   679,   11   L.  R.   A.    (N.  Mich.  54,   47  N.  W.   COO;    City   o? 

S.)     129,     67     Atl.     274;      South-  Winona    v.    Huff,    11    Minn.    119; 

ampton   v.   Betts,    163    N.    Y.    454,  Carroll  v.  Elmwood.  88  Neb.  352. 

57   N.   E.   762;    Street  Comm'rs  v.  129  N.  W.  537;    Incorporated  Vil- 

Taylor,     1     Brev.     (S.     C.)     129;  lage  of  Fulton's  Lessee  v.  Mehren- 

Racine    v.    Crotsenberg,    61    Wis.  feld.  8  Ohio  St.  440. 


1886 


Eeal  Peoperty. 


[§  486 


the  public  authorities  to  individuals,-'^  nor  used  for 
purposes  other  than  those  for  which  it  was  dedicated.^® 
A  use  of  the  land  by  the  public  authorities  for 
l)urposes  other  than  those  contemplated  in  the  dedica- 
tion will  be  restrained  upon  the  application  of  owners 
of  other  land  injured  by  such  change  of  use^"^  and  a 
suit  for  this  purpose  may  be  maintained  by  the  dedi- 
cator, it  seems,  in  case  the  ownership  of  the  land  is 
still  in  him,-^  but  not  if,  under  the  statute,  the  owmer- 


25.  Douglass  v.  City  Council 
of  Montgomery,  118  Ala.  599,  43 
L.  R.  A.  376,  24  So.  745;  Rudolph 
Herman  Co.  v.  City  and  C.ounly 
of  San  Francisco,  154  Cal.  688, 
99  Pac.  169;  City  of  Alton  v. 
Illinois  Transp.  Co.,  12  111  38, 
52  Am.  Dec.  479;  Trustees  of 
August  V.  Perkins,  3  B.  ^^oil. 
(Ky.)  437;  Cummings  v.  City  of 
St.  Louis,  90  Mo.  259,  2  S.  W. 
130;  Haberly  v.  Treadgcld,  67 
Ore.  425,  136  Pac.  334;  Corpora- 
tion of  Seguin  v.  Ireland,  58  Tex. 
183. 

26.  Western  Railway  of  Ala.  v. 
Alabama  G.  T.  R.  Co.,  96  Ala. 
272,  17  L.  R.  A.  474,  11  So.  483; 
Arkansas  River  Packet  Co.  v. 
Sorrels,  50  Ark.  466,  8  S.  W.  683; 
Gurnsey  v.  Northern  California 
Power  Co.,  160  Cal.  699,  36  L. 
R.  A.  (N.  S.)  185,  117  Fac.  906; 
Lutterloh  v.  Town  of  Cedar  Keys, 
15  Fla.  306;  Ward  v.  Field  Mu- 
seum, 241  in.  496,  89  N.  E.  731; 
East  Chicago  Co.  v.  East  Chi- 
cago, 171  Ind.  654,  87  N.  E.  17; 
Hopkinsville  v.  Jarrett,  156  Ky. 
777,  162  S.  W.  85;  Codman  v. 
Crocker,  203  Mass.  146,  89  N. 
E.  177;  Board  of  Regents  for 
Normal  School-Dist.  No  3  v. 
Painter,  102  Mo.  464,  10  L.  R.  A. 
493,    14    S.    W.    938;    Trustees    of 


Methodist  Episcopal  Church  of 
Hoboken  v.  City  of  Hoboken,  33 
N.  J.  L.  13,  97  Am.  Dec.  696; 
Louisville  &  N.  R.  Co.  v.  Cin- 
cinnati, 76  Ohio  St.  481,  81  N. 
E.  983;  Church  v.  Portland,  18 
Ore.  73,  6  L.  R.  A.  259. 

27.  Douglass  v.  City  Council 
of  Montgomery,  118  Ala.  599,  43 
L.  R.  A.  376,  24  So.  745;  Lutter- 
loh v.  City  of  Cedar  Keys,  15  Fla. 
306;  Strange  v.  Hill  &  West 
Dubuque  St.  Ry.  Co.,  54  Iowa, 
669,  7  N.  W.  115;  Price  v. 
Thompson,  48  Mo.  363;  Dodge 
v.  North  End  Improvement  Ass'n, 
189  Mich.  16,  Ann  Cas.  1918E, 
485,  155  N.  W.  438;  Row- 
zee  V.  Pierce,  75  Miss.  846, 
40  L.  R.  A.  402,  65  Am.  St. 
Rep.  625,  23  So.  307;  Huber  v. 
Gazley,  18  Ohio,  18,  3  Ohio  St. 
399;  Church  v.  City  of  Portland, 
18  Ore.  73;  Morrow  v.  Highland 
Grove  Traction  Co.,  219  Pa.  619, 
123  Am.  St.  Rep.  677,  69  Atl.  41; 
Clement  v.  City  of  Paris,  107 
Tex.    200,    175    S.    W.    672. 

28.  Hardy  v.  City  of  Memphis, 
10  Heisk.  (Tenn.)  127;  Rowzee 
V.  Pierce,  75  Miss.  846,  40  L.  R. 
A.  402,  65  Am.  St.  Rep.  625, 
23  So.  307.  But  see  Thorndike 
V.  Milwaukee  Auditorium  Co.,  143 
Wis.   1,  126  N.  W.  881. 


§  486] 


Dbdioatioit, 


1887 


ship  of  the  land  is  in  the  public.-^ 

In  case  a  right  of  user  only  is  vested  in  the  public, 
an  abandonment  of  the  right  has  the  effect  of  leaving 
the  land  free  from  the  burden  thereof,  in  the  original 
dedicator  or  those  claiming  under  him.^°  And  even 
when,  under  the  statute,  the  ownership  is  vested  in  the 
public,  if  the  authorities  entirely  relinquish  the  use  of 
the  land,  or  the  use  for  which  the  land  was  dedicated 
becomes  impossible,  the  land  has  been  held  to  revert 
to  the  original  dedicator,  or  to  persons  claiming  under 
him.^^ 

A  mere  failure  on  the  part  of  the  pulilic  to  exercise 
the  right  of  user,  or  the  cessation  of  such  exercise, 
does  not  show  an  abandonment,'^^  nor  is  an  improper 


29.  United  States  v.  Illiuois 
C.  R.  Co.,  154  U.  S.  225,  38  L. 
Ed.  971;  Thorndike  v.  Mil- 
waukee Auditorium  Co.,  143  Wis. 
1,  126  N.  W.  881.  Contra,  War- 
ren V.  City  of  Lyons  City,  22 
Iowa,    351. 

30.  Mahoning  County  Comr's 
V.  Young,  8  C.  C.  A.  27,  59  Fed. 
96;  Matthews  v.  Bloodworth,  111 
Ark.  545,  165  S.  W.  263;  Olin 
V.  Denver  &  R.  G.  R.  Co.,  25 
Colo.  177,  53  Pac.  454;  Benham 
V.  Potter,  52  Conn.  248;  Robbins 
V.  White,  52  Fla.  613,  42  So.  841; 
Bayard  v.  Hargrove,  45  Ga.  342; 
Thomsen  v.  McCormick,  136  111. 
135,  26  N.  E.  373;  Town  of 
Freedom  v.  Norris,  128  Ind.  377, 
27  N.  E.  869;  Kitzman  v.  Green- 
halgh,  164  Iowa,  166,  145  N.  W. 
505;  Baltimore  &  O.  K.  Co.  v. 
Gould,  67  Md.  60,  8  Atl.  754;  Briel 
v.  City  of  Natchez,  48  Miss.  423; 
Tracy  v.  Bittle,  213  Mo.  302, 112  S. 
W.  45;  Porter  v.  International 
Bridge  Co.,  200  N.  Y.  234.  9:5  N. 
E.  716;  Rowe  v.  James,  71  Wash. 
267,    128    Pac.    539. 


31.  Hill  V.  Kimball,  269  111. 
398,  110  N.  E.  18;  Board  of 
Sup'rs  of  Kent  County  v.  City 
of  Grand  Rapids,  61  Mich.  144, 
27  N.  W.  888;  Gaskins  v.  Wil- 
liams, 235  Mo.  563,  139  S.  W. 
117;  City  of  Newark  v.  Waison, 
56  N.  J.  L.  667,  24  L.  R.  A.  843, 
29  Atl.  487;  Heard  v.  City  of 
Brooklyn,  60  N.  Y.  242;  Board 
of  Education  of  the  Incorporated 
Village  of  Van  Wert  v.  Inhabi- 
tants of  Van  Wert,  18  Ohio  St. 
221,  98  Am.  Dec.  114;  Haberly 
v.  Treadgold,  67  Ore.  425,  136 
Pac.  334;  State  v.  Travis  County, 
85  Tex.  435,  21  So.  1029:  Sow- 
adzki  v.  Salt  Lake  County,  36 
Utah,  127,   104  Pac.  111. 

32.  Santa  Ana  v.  Santa  Ana 
Valley  Irr.  Co.,  163  Cal.  211. 
124  Pac.  847;  Chicago  R.  1.  & 
P.  Ry.  V.  Council  Bluffs.  109 
Iowa,  425,  80  N.  W.  564;  Gardarl 
V.  Humboldt.  87  Kan.  41.  123 
Pac.  764;  Rowan  v.  Portland, 
8  B.  Mon.  (Ky.)  232;  Uriel  v. 
Natchez,  48  Miss.  423;  Smith  v. 
State,   23   N.   J.   L.   712;    Spencer 


Eeal  Pkopeety. 


[§  486 


use  of  the  land  by  the  public  authorities  sufficient  in 
itself  to  terminate  the  riglits  of  the  public  therein."'^ 


V.  Peterson,  41  Ore.  257,  68  Pac. 
519;  Pittsburg  v.  Epping-Carpen- 
ter  Co.,  194  Pa.  St.  318,  45  Atl. 
129;  Hogan  v.  Jamestown,  32 
R.  I.  528,  80  Atl.  271;  Basic 
City  V.  Bell,  114  Va.  157,  Ann. 
Cas.  1914A,  1031,  76  S.  E.  336; 
Olson  Land  Co.  v.  City  of  Seattle, 
76  Wash.  142,  136  Pac.  118; 
Lins  V.  Seefield,  126  Wis.  610,  105 
N.    W.    917. 

33.  Barclay  v.  Howell,  6  Pet. 
(U.  S.)  498,  8  L.  R.  A.  478; 
McAlpine  v.  Chicago  Great  West- 


ern R.  Co.,  68  Kan.  207,  64  L.  R. 
A.  85,  1  A.  &  E.  Ann.  Cas.  452, 
75  Pac.  73;  Parker  v.  City  of 
St.  Paul,  47  Minn.  317,  50  N. 
W.  347;  Goode  v.  City  of  St. 
Louis,  113  Mo.  257,  20  S.  W. 
1048;  Williams  v.  First  Presby- 
terian Soc.  in  Cincinnati,  1  Ohio 
St.  478;  Hardy  v.  City  of  Mem- 
phis, 10  Heisk.  (Tenn.)  127; 
Thorndike  v.  Milwaukee  Audi- 
torium Co.,  143  Wis.  1,  126  N. 
W.    881. 


CHAPTER  XXII. 

INTESTATE   SUCCESSION, 

§  487.  General  considerations. 

488.  Descent  to  issue. 

489.  Surviving  consort  as  lieir. 

490.  Parent  as  lieir. 

491.  Descent  to   collateral   kindred. 

492.  Kindred   of  the  half  blood. 

493.  Representation. 

494.  Ancestral  lands. 

495.  Illegitimate  children. 

496.  Unborn  children. 

497.  Adopted  children. 

498.  Advancements. 

499.  Disinheritance. 

§  487.  General  considerations.  At  common  law,  the 
real  property  belonging  to  decedents  j^assed,  in  the 
absence  of  a  valid  will/  to  persons  standing  in  a  position 
of  blood  relationship  to  them,  according  to  certain 
established  rules  or  ''canons"  of  descent.-  Personal 
property,  on  the  other  hand,  including  chattels  real, 
passed  to  the  administrator,  appointed  by  the  ecclesi- 
astical court  from  among  the  intestate's  next  of  kin, 
who  usually,  whether  rightly  or  wrongly,  appropriated 
to  his  own  use  all  the  surplus  after  payment  of  debts,^ 
until  by  statute  it  was  provided  that  such  sur])lus 
should  be  distributed,  in  a  certain  manner,  to  the 
widow  and  children,  or,  in  default  of  children,  to  the 
next  of  kin.* 

In  this  country,  the  common-law  distinction  between 
real  and  personal  property  in  this  regard  is  still   re- 

1.  But    a    will    was    valid,    ex-      208   et   scq. 

cept  by  particular  custom,  only  ?>.  Blackst.  Comni.  515;  Holds- 
after  the  Statute  of  Wills.  See  worth  &  Vickers  Law  of  Suf- 
ante,  §  466.  cession,    132. 

2.  Litt.    §§    2-8;    2    Bl.    Comm.  4.     22   &   2ri   Car.   II.  c.   10. 

(1889) 


1890  Eeal  Property.  [§  487 

tained  in  perhaps  a  majority  of  states,  though  in  some 
the  executor  is  empowered,  upon  receiving  authority 
from  the  court,  to  sell  real  property  for  the  payment 
of  debts. ^  In  some  states  the  statute  provides  that  real 
property  shall  pass  to  the  personal  representative,  to 
be  administered  by  him  in  the  same  manner  as  personal 
property,*^  and  there  is  a  growing  tendency  to  obliterate 
the  distinctions  between  the  two  classes  of  property  as 
regards  the  powers  of  the  executor  or  admin'strator  in 
redarg  thereto.  Generally,  moreover.  In  this  country, 
the  persons  to  whom  the  real  property  passes  upon  the 
death  of  the  owner  intestate  are  approximately  the  same 
as  those  entitled  to  the  personal  property  when  dis- 
tributed by  the  personal  representative. 

The  original  rule  at  common  law  was  that  the 
right  of  succession  was  determined  by  relationship  to 
the  ''first  purchaser,"  as  he  was  termed,  meaning 
thereby  the  person  who  in  theory,  at  least,  brought  the 
land  into  the  family,  but  who  might  as  well  have  been 
termed  the  last  purchaser,  as  being  the  person  who 
last  acquired  the  land  otherwise  than  by  descent.  In 
course  of  time,  when  land  had  been  in  the  same  family 
for  several  generations,  it  frequently  became  difficult 
satisfactorily  to  identify  such  purchaser,  and  the  courts 
came  to  regard  relationship  to  the  person  last  seised 
in  deed  of  the  land  as  sufficient  for  this  purjjose,  on  a 
presumption  apparently  to  the  effect  that  a  person  re- 
lated to  the  person  last  seised  was  ordinarily  likewise 
related,  in  the  same  line  of  descent,  to  the  first  pur- 
chaser.'^   And  so  it  is  usually  said  that,  at  common  law^, 

5.  Post,  §  552.  The  common-law  rule  that  seis- 

6.  Woerner,  Administration,  in  in  deed  makes  the  root  of 
§§  276,  337;  1  Dembitz,  Land  descent,  in  connection  with  the 
Titles,  §  28;  11  Am.  &  Eng.  Enc.  rule  that  persons  of  the  half 
Law,  1037  et  seq.  blood   could   not  inherit,  received 

7.  Watkins,  Descents  {4th  what  was  regarded  as  its  typical 
ed.)  11,  2  Blackst.  Comm.  228,  exemplification  in  the  following 
and  Chitty's  note  to  same  on  p.  case:  If,  on  the  death  of  a 
209;   Leake,  Prop,  in  Land,  60.  father  seised   in  fee  simple,  leav- 


§  487  Intestate    Successiox.  1891 

the  person  claiming  land  by  descent  must  have  shown 
that  he  was  heir  to  the  person  who  was  last  actually 
seised  of  the  land.  Xevertheless,  if  one  acquired  land  by 
purchase,  although  he  did  not  acquire  the  actual  seisin, 
as  for  instance  a  devisee  w^ho  failed  to  enter,  his  heir 
could  take  by  descent  to  the  exclusion  of  the  heir  of 
the  person  last  actuahy  seised.^ 

The  present  English  statute  provides  that  descent 
shall  always  be  traced  from  the  last  purchaser^*  while 
in  this  country,  in  most,  if  not  all,  the  states,  descent 
is  traced  from  the  person  last  entitled  to  the  land, 
regardless  of  whether  he  was  seised,  or  whether  he  ac- 
quired the  land  by  purchase  or  by  descent.*^ 

At  common  law,  as  in  England  at  the  present  day, 
the  male  issue  inherits  before  the  female,  and,  when 
there  are  two  or  more  males  of  equal  degree,  the  elder 
alone  inherits,  while  females  inherit  all  together.  These 
rules,  in  so  far  as  they  give  priority  to  the  male  issue, 
and  to  the  eldest  of  such  issue,  have  been  changed  in  all 
the  states  of  this  country,  and  all  those  in  the  same 
degree  of  relationship,  w^hether  male  or  female,  share 
equally  in  the  inheritance,  the  legislation  in  this  country 
having  followed  in  this  respect,  as  it  has  frequently  done 
in  other  respects,  the  provisions  of  the  English  statute 
as  to  the  distribution  of  personal  property.^" 

ing  a   son   and    a   daughter   by   a  referred    to    as    the    doctrine    of 

first   marriage,    and    a   son   by   a  "possessio    fratis.''      See    Litt.    § 

second    marriage,    the    elder    son,  8;    WiHlams,   Seisin,   55;    Challis, 

the    heir,    entered    and    obtained  Real   Prop.    241. 

seisin,  and   then  died  without  is-  8.     Watkins,  Descents  (4th  ed.) 

sue,    his    half    brother    could    not  29,  32;    Hubback,   Succession,  114. 

inherit,    but    the    land    passed    to  8a.     3    &    4    Wm.    IV.    c.     lOG. 

the    sister,    while,    if   he    did    not  "The    Inheritance    Act." 

enter,    the    land    would    pass    to  9.     4       Kent's       Comm.       itSS; 

the     half     brother.       Hence     the  Greenleaf's    Cruise's    Dig.    tit.    29. 

maxim,  "Possessio  fratris  de  feodo  ch.     3;      Dembitz,     Land     Titles, 

simplici  facit  sororem  esse  haer-  §    30. 

edem,"   and   the   rule   that   seisin  10.      4    Kent's    Comm.    379;     1 

in  deed  is  necessary  to  make  the  Stimson's   Am.    St.    Law,   §    3101. 

root    of    descent    was    frequently  Occasionally    a   naked    legal    title 


]S92  Real  Property.  [§  487 
Reversions  and  remainders.     Since  at  common 


law  descent  was  traced  either  from  the  person  last 
actually  seised,  or  from  the  last  purchaser,  it  followed 
that  if  a  reversion  or  remainder  subject  to  a  particular 
estate  of  freehold  was  cast  upon  an  heir,  such  heir  did 
not,  unless  he  did  acts  changing  the  course  of  descent, 
constitute  a  root  of  descent,  in  case  of  his  death  while 
the  particular  estate  was  still  outstanding,  but  the  per- 
son claiming  as  heir  upon  his  death  was  required  to 
trace  his  descent  from  the  original  reversioner  or  re- 
mainderman, as  being  the  last  purchaser,  and  it  was  the 
person  who  was  the  heir  of  the  latter  at  the  time  of  the 
termination  of  the  particular  estate  who  was  then  enti- 
tled to  possession. ^1  A  like  rule  applied  in  the  case  of 
an  executory  devise,  that  person  being  entitled  who  could 
show  himself  the  hoar  of  the  original  devisee  at  the  time 
of  the  vesting. ^2 

The  common-law  rule  in  this  regard  was  recognized 
and  applied  in  a  number  of  states,^^  but  even  in  those 
states,  as  in  others,  it  has,  for  the  most  part,  been  super- 
seded, owing  to  the  statutory  changes  in  the  law  of 
descent,  with  the  result  that  a  reversion  or  remainder, 
which  passes  to  one  by  descent,  subsequently  passes,  on 

still  descends  as  at  common  law.  Scoggin,    92    N.    Car.    99,    53    Am. 

As    to    estates    tail,    see    cmfe,    §  Rep.    410. 

30.  In   Barnitz  v.   Casey,   7   Cranch 

11.  Watkins,  Law  of  Descents  456,  and  Garrison  v.  Hill,  79  Md. 
(14th  Ed.)  130;  Cruise,  Digest.  75,  47  Am.  St.  Rep.  363,  28  Atl. 
tit.   29,  ch.   4,   §   1   e<   seq.  1062,    it    is    said    that    he    is    en- 

12.  Goodright  v.  Searle,  2  Wils.  titled  who  makes  himself  heir  at 
29;  Doe  v.  Hutton,  3  Bos.  &  the  time  when  the  contingency 
Pull.  643;  Watkins,  Law  of  De-  happens.  That  is  so  in  the 
scents,  132;  Fearne,  Cont.  Rem.  case  of  an  executory  interest,  as 
561.  in    the    first    of    the    above    cited 

13.  Buck  V.  Lantz,  49  Md.  cases,  because  it  is  then  that 
439;  Conner  v.  Waring,  52  Md.  the  interest  falls  into  possession, 
724;  Jenkins  v.  Bonsai,  116  Md.  but  it  would  not  seem  to  be  so 
629,  82  Atl.  229;  Payne  v.  Rosser,  in  the  case  of  a  contingent  re- 
53  Ga.  662;  Jackson  v.  Hilton,  mainder,  unless  the  vesting  and 
16  Johns.  (N.  Y.)  96;  Lawrence  the  termination  of  the  particular 
V,   Pitt.   46   N.   Car.   344;    King   v.  estate    occur    at    the    same    time. 


§  48  /  ]  Intestate  Succession.  1893 

his  d?atli  intestate,  to  his  heirs,  without  regard  to  the 
ancestor  from  whom  he  inherited. ^^ 

Devise   to   heir.     In   case   one   undertakes   to 

devise  to  his  heir  exactly  the  same  interest  in  par- 
ticular land  as  the  latter  would  take  by  descent,  he  is 
regarded  as  taking  by  descent  and  not  by  the  devise, 
descent  being  regarded  as  the  worthier  title.^-'  So  if 
one  having  an  estate  in  fee  simple  undertakes  to  de- 
vise an  estate  for  life  to  one  person  with  remainder 
in  fee  simple  thereon  to  his,  the  testator's,  heir  at  lav\', 
the  latter,  instead  of  taking  an  estate  in  remainder  under 
the  devise,  takes  an  estate  in  reversion  by  descent.^*^ 
That  the  devise  is  subject  to  a  charge  of  some  sort  does 
not  affect  the  application  of  the  rule.^*^"  But  if  the 
devise  undertakes  to  give  to  the  heir  an  estate  in  a 
larger  or  smaller  share  of  the  land  than  would  have 
passed  to  him  by  descent,  he  takes  under  the  devise."''' 

In  case  the  property  w'ould,  apart  from  the  devise, 
pass  by  descent  to  two  or  more  persons  to  hold  jointly, 

as    in    the    second    of    the    above  son     v.     Koehler,     76     Ind.     398; 

cited  cases.     At  common  law  the  Tyler     v.     Fidelity     &     Columbia 

general     doctrine     applied     to     a  Trust    Co.    158    Ky.    280,    164    S. 

vested    as    well    as    to    a    contin-  W.    939;    Medley    v.    Williams,    7 

genty  remainder.  G.  &  J.    (Md.)    70;    Ellfs  v.  Page, 

14.  Kean  v.  Hoffecker,  2  Harr.  7  Cush.  (Mass.)  161;  Felton  v. 
(Del.)  103,  29  Am.  Dec.  336;  Billups,  2  Dev.  &  B.  (19  N. 
Oliver  v.  Powell,  114  Ga.  592,  Car.)  308;  Seabrook's  Excrs.  v. 
40  S.  E.  826;  North  v.  Graham,  Seabrook,  1  McMul.  Eq.  (S. 
235  111.  178,  18  L.  R.  A.  (N.  S.)  C.)  201;  Hoover's  Lessee  y. 
624,    126    Am.    St.    Rep.    189,    85  Gregory,  10  Yerg.   444. 

N.    E.    267;    Miller    v.    Miller,    10  16.     Watkins,   Law  of  Descents 

Mete.   (Mass.)    393;   Cook  v.  Ham-  (4th  Ed.)    221;    Barr  v.  Gardner, 

mond,    4    Mason,    467;     Moore    v.-  259   111.  256,  102   N.  E.  287;    Stel- 

Rake,  26  N.  J.  L.  574;    Barber  v.  well  v.  Knapper,   69    Ind.   558,   35 

Brundage,    165    N.    Y.    368,    62    N.  Am.  Rep.  240;   Donelly  v.  Turner, 

E.    417;    Early    v.    Early,    134    N.  60  Md.   81;    Whitney  v.  Whitney, 

C.    258,    46    S.    E.    503;    Hicks    v.  14    Mass.    88. 

Pegues,  4  Rich.   Eq.    (S.   C.)    413.  16a.     Clark    v.    Smith,    1    Salk. 

15.  Watkins,  Law  of  Descents  241;  Ellis  v.  Page,  7  Cusli. 
(4th  Ed.)  229;  Co.  Litt.  12b,  (Mass.)  161;  Kinney  v.  Glasgow, 
Hargrave's   note;    .Tost   v.   Jost,   1  53  Pa.   141. 

Mackey    (Dist.   Col.)    487;    David- 


1894  Real  Peoperty.  [§  488 

the  question  whether  a  devise  of  the  property  to  those 
persons  would  be  operative  depends  primarily  on  wheth- 
er, in  that  particular  jurisdiction,  joint  heirs  take  as 
coparceners  or  as  tenants  in  common.^^^  If  joint  heirs 
take  as  coparceners,  such  persons  named  as  joint 
devisees  take  under  the  devise  and  not  by  descent,  since 
the  devise  creates  a  tenancy  in  common  or  joint  tenancy, 
and  cannot  create  a  holding  in  coparcenery,^^*^  while  if 
joint  heirs  take  as  tenants  in  common,  a  devise  to 
them  jointly,  if  not  in  such  form  as  to  create  a  joint 
tenancy,  is  nugatory  as  creating  the  same  interest  in 
each  of  them  as  he  would  acquire  by  descent. ^"^ 

§  488.  Descent  to  issue.  In  all  the  states,  realty 
descends  to  all  the  legitimate  children  of  deceased  living 
at  his  death,  and  to  the  descendants  of  deceased  children, 
these  latter  taking  per  stirpes,  and  not  per  capita,  that 
is,  the  descendants  of  each  child  taking  what  their  an- 
cestor would  have  taken  had  he  been  alive,  without 
reference  to  their  number,  ^^  In  case  all  the  children  of 
the  intestate  are  dead,  the  grandchildren  and  issue  of 
deceased  grandchildren  inherit  in  their  jjlace.  Such 
descendants  take  per  stirpes  if  they  are  not  all  in  the 
same  degree  of  relationship  to  the  intestate,  as  when 
some  are  grandchildren  and  some  are  great-grand- 
children, while,  if  they  are  all  in  the  same  degree  of 
relationship,  they  take  in  some  states  per  capita,  though 
in  other  states  per  stirpes}^ 

16b.     Landic     v.     Simmous,     1  300,    12     S.    E.    753;     McAfee    v. 

App.   D.   C.   507;    McDaniel  v.  Al-  Gilmore,   4   N.   H.   391'. 

leu,  64  Miss.  417,  1   So.  356;    Mc-  *     17.     See  Trustees  of  University 

Kay  V.  Hendon,  7  N.  C.  209.  v.   Holstead,   4   N.   Car.   289. 

16c.     Ante,  §  193.  18.     1    Stimson's   Am.    St.   Law, 

16d.     Watkins,  Law  of  Descent  §    3101. 

(4th   Ed.)    233;    Anon.    Cro.   Eliz.  19.     1    Stimson's   Am.    St.   Law, 

431,    pi.    6;     Gilpin    v.    HoUings-  §§   3103,   3137;     1   Dembitz,   Land 

worth,   13   Md.    190,   56   Am.   Dec.  Titles,    §    33, 
737;    Biedler    v,    Biedler,    87    Va. 


§  481)]  Intestate  Suocessiox.  1895 

§  489.  Surviving  consort  as  heir.  At  common 
law,  the  surviving  husband  was  entitled  to  an  estate  by 
curtesy  in  his  wife's  real  property,^"  while  he  took  an 
absolute  interest  in  her  personal  property,  including 
chattels  real.-^  Apart  from  his  estate  by  curtesy,  her 
real  property  did  not  pass  to  him,  even  though  other- 
wise it  escheated  for  failure  of  heirs.  In  this  country, 
at  the  present  day,  the  surviving  husband  is  frequently 
given  a  fee-simple  interest  in  his  wife's  real  property. 
In  some,  he  is,  if  the  wife  leaves  no  issue,  given  a  fee- 
simple  interest  in  all  her  realty,  while  in  some  he  is  given 
one-half  or  two-thirds  of  her  realty  in  such  case.  In  a 
number  of  states,  although  there  are  children,  he  takes 
a  share  by  descent,  which  is  greater  or  less,  according  to 
the  number  of  children  who  are  to  share  in  the  intestate's 
property.  In  some  states,  moreover,  he  takes  all  tlie 
realty,  if  the  wife  leaves  no  issue,  parent,  or  brother  or 
sister,  and  in  most,  if  not  in  all,  the  states,  he  takes  it 
if  she  leaves  no  kindred.^^ 

The  surviving  wife  had,  at  common  law,  her  right  of 
dower  only  out  of  his  realty,  while,  by  the  English 
statute  of  distribution,  she  was  given  one-third  of  his 
personalty,  unless  he  left  no  issue,  in  which  case  she 
had  one-half.^^  In  this  country  the  widow  is  frequently, 
by  statute,  given  a  fee-simple  interest  in  a  portion  of 
her  husband's  realty  in  certain  contingencies,  as  when 
he  leaves  no  issue,  or  no  issue,  parent,  or  brother  or  sis- 
ter, or  when  he  leaves  no  kindred,  her  rights  correspond- 
ing, in  a  general  way,  to  those  of  a  surviving  husband.^-* 
In  a  number  of  states,  moreover,  she  is  given  a  third 
or  a  half  in  fee  simple,  even  though  her  husband  loaves 

20.  Ante,  §§  237-245.  Dembitz,  Land  Titles,  §  32. 

21.  Co.    Litt.    351;     2    Blackst.  23.     2  Blackst.  Comm.  515. 
Comm.    434.  24.     1    Stinison's   Am.    St.   Law, 

22.  1  Stimson's  Am.  St.  Law,  §§  3109,  311.5,  3119.  3123;  1 
§§  3105,  3109,  3115,  3119,  3123;  1  Woerner,  Administration.  §  67; 
Woerner,  Administration,  §  66;    1  1   Dembitz,   Land   Titles,   §  !52. 


189G  Real  Propebty.  [§§490,491 

issue,^^  and  this  she  is  frequently  allowed  to  take  in  lieu 
of  any  provisions  made  for  her  in  his  will.^^ 

§  490.  Parent  as  heir.  At  common  law,  land  could 
never  lineally  ascend,  that  is,  it  could  not  pass  to  the 
father  or  grandfather  of  the  decedent  upon  the  latter 's 
death,  though  it  could  pass  to  his  uncle,  the  brother  of 
his  father,  and  might  from  him  pass  to  the  father.^ ^  This 
rule  has  been  entirely  changed  in  this  country,  and  the 
statute  frequently  provides  that  the  decedent's  prop- 
erty shall  pass  to  his  father  or  mother  in  certain  cases. 
Thus,  in  some  states  it  is  provided  that,  if  the  intestate 
leave  no  descendants,  his  property  shall  pass  to  his 
father,  or  to  the  father  or  mother,  or  to  the  mother, 
together  with  brothers  and  sisters,  though  in  some  states 
the  brothers  and  sisters  of  deceased  are  preferred  to 
either  of  his  parents.^^ 

§  491.  Descent  to  collateral  kindred.  In  case  the 
intestate  leaves  no  issue  surviving,  and  the  realty  does 
not  pass  entirely  to  the  surviving  consort,  or  to  one  or 
bott  of  the  parents,  under  the  statutes  referred  to 
above,  it  descends  among  the  collateral  kindred  of  the 
intestate,  that  is,  to  persons  not  lineally  related  to  him, 
but  related  by  reason  of  the  fact  that  they  are  descended 
from  the  same  ancestor.  Among  such  collateral  kindred 
the  brothers  and  sisters  and  their  descendants  hold  the 
first  place,  and  are  sometimes,  by  the  terms  of  the  stat- 
ute, preferred  to  the  parents  of  deceased.^^ 

Generally,  as  between  collateral  kindred  not  ijartio- 
ularly  specified  in  the  statute  of  descent,  those  standing 

25.  1    Stimson's   Am.    St.   Law,       Law,     287     et     seq.;     Holdsworth 
§    3105.  &    Vickers,    Law    of    Succession, 

26.  1    Stimson's   Am.    St.   Law,       152. 

§   3262;    see  a^ite,   §   236.  28.     1    Stimson's   Am.    St.    Law, 

27.  Litt.     §     3.      Different    ex-       §§    3107,    3111,    3117;    1   Woerner, 
planations    of   the    origin   of   this      Administration,    §    68. 

rule    have    been    given.       See     2  29.     1    Stimson's   Am.    St.   Law, 

Blackst.      Coram.      211      et      seq.:       §§    3107,    3111,    3113,   3121. 
2  Pollock  &  Maitland,  Hist.  Eng. 


§  49J]  Intestate   Successio:n-.  1897 

in  an  equal  degree  of  relationship  to  the  intestate  share 
the  inheritance  to  the  exclusion  of  those  in  a  more  dis- 
tant degree.  In  the  majority  of  the  states,  the  statute 
provides  that  the  degrees  of  kinship  shall  be  computed 
according  to  the  rule  of  the  civil  law,  though  a  few 
have  adopted  that  of  the  canon  law,  sometimes  referred 
to  as  that  of  the  common  law.'*^  The  preference  shown 
for  the  civil  law  is  in  accord  with  the  general  tendency 
to  follow  the  English  statute  of  distributions,  which 
was  construed  with  reference  to  the  civil  law  rule."^^ 
The  difference  between  the  two  rules  is  as  follows.  The 
canon  law  regarded  the  intestate  and  a  particular  claim- 
ant as  in  the  degree  of  relationship  to  one  another  which 
corresponded  to  the  number  of  degrees  between  their 
common  ancestor  and  the  one  of  his  two  descendants  who 
was  most  distant  from  him,  so  that  if  the  claimant  and 
intestate  were  both  grandchildren  of  the  common  an- 
cestor, they  were  related  to  one  another  in  the  second 
degree,  while,  if  one  was  a  grandchild  and  the  other 
a  great-grandchild,  they  were  related  in  the  third  degree. 
By  the  civil-law  method  of  computing  relationship,  on 
the  other  hand,  the  degrees  between  the  common  ances- 
tor and  the  intestate  were  added  to  those  between  the 
former  and  the  claimant,  in  order  to  ascertain  the 
degree  of  relationship;  and  so  two  grandchildren  of  a 
common  ancestor  were  related  in  the  fourth  degree,  and 
a  grandchild  and  a  great-grandchild  in  the  fifth  degree.^- 
The  canon  law  rule  was  utilized  by  the  ecclesiastical 
courts  for  the  purpose  of  determining  the  validity  of 
marriage  between  blood  relatives,  but  does  not  appear 
ever  to  have  been  recognized  in  England  l)y  the  common 
law  courts.-^"^  It  has  never  in  that  country  been  applied 
for  the  purpose   of  determining  rights  of  inheritance, 

30.  1   Stimson's   Am.    St.   Law,       Ed.)  355. 

§§  3121,  3139;   1  Woerner,  Admin-  32.     2    Blackst.    Comm.    206    ct 

istration,    §    72.  srq. 

31.  Lloyd  V.  Tench,  2  Ves.  Sr.  33.     See    Christian's    note    to    2 
212;    1    Williams,   Executors    (9th  Blackst.   Comm.   207. 


1898  Real  Property.  [§  492 

for  the  reason  that  these  have  always  been  ascertained, 
as  between  collateral  kindred,  upon  the  princi]3le  of 
representation,  according  to  which  the  lineal  descend- 
ants of  any  person  deceased  stand  in  the  place  in  which 
such  person  would  have  stood  if  he  had  been  living.^* 

§  492.  Kindred  of  the  half  blood.  At  common  law, 
in  order  that  one  might  inherit  as  a  collateral  kinsman 
of  the  intestate,  it  was  necessary  that  they  both  be 
descended  not  only  from  the  same  person,  but  from  the 
same  marriage  of  that  person,  that  is,  the  claimant 
must  have  been  a  kinsman  of  the  whole,  and  not  of  the 
half,  blood.  So,  one  could  not  inherit  from  his  half 
brother,  even  though  the  land  had  descended  from  their 
common  parent  to  such  half  brother,  and  though  other- 
wise the  land  would  escheat  for  want  of  heirs.^^  This 
rule  has  been  changed  by  statute  in  most,  if  not  all,  the 
states,  but  the  statutory  provisions  on  the  subject  are 
very  divergent.  In  a  few  states,  kindred  of  the  half 
blood  are  given  the  same  rights  of  succession  as  those  of 
the  whole  blood;  and  in  some  they  inherit  half  shares 
only  as  against  the  whole  shares  passing  to  those  of  the 
whole  blood.  In  a  number  of  states,  while  the  dis- 
tinction between  the  whole  and  half  blood  no  longer  ex- 
ists in  connection  with  land  purchased  by  the  intestate, 
it  does  exist  as  to  ancestral  land,  so  as  to  exclude  from 
any  share  therein  collateral  kin  not  of  the  blood  of  the 
ancestor  from  whom  the  land  was  derived.^^*  In  a  few 
states  kindred  of  the  half  blood  do  not  take  except  in 
default  of  kindred  of  the  whole  blood  in  the  same  de- 
gree of  relationship.^*^  In  the  absence  of  any  reference 
to  the  matter  of  whole  or  half  blood,  the  statute  has  al- 

34.  Post,   §   493.  tion,     §     70;     1     Dembitz,     Land 

35.  Litt.     §§     6-8;     2     Blackst.      Titles,    §    37.     The    cases    on    the 
Comm.    227.  subject   are   collected    in   editorial 

35a.     Post,   §   494.  notes    29     L.    R.    A.     552,    26    L. 

36.  1    Stimson's   Am.    St.   Law,      R.  A.  N.   S.  603,  L.  R.  A.   1916C, 
§    3133;    1    Woerner,    Administra-      923. 


§  493]  Intestate  Sucoesstox.  1899 

most  invariably  been  construed  to  apply  without  refer- 
ence to  such  a  distinction.^"^ 

§  493.  Representation.  The  common  law  doctrine 
was  that  the  lineal  descendants  of  a  person  deceased 
represent  the  latter,  that  is,  stand  in  the  place,  for  pur- 
poses of  inheritance  from  another,  in  which  the  deceased 
person  would  have  stood  had  he  survived."^ ^  In  this 
country,  since  the  statutes  expressly  give  the  right  of 
inheritance  to  the  direct  descendants  of  the  intestate, 
and  declare  whether  they  are  to  take  per  stirpes  or  per 
capita,  the  application  of  the  doctrine  of  representation 
is  not  usually  called  for  in  their  favor.  As  regards  col- 
lateral kindred,  there  is  in  some  states  a  general  pro- 
vision that  the  descendants  of  any  person  deceased  shall 
inherit  the  estate  which  such  person  would  have  inherit- 
ed had  he  survived  the  intestate,  but  more  usually  the 
right  of  representation  is  in  terms  restricted  to  descend- 
ants of  a  deceased  brother  or  sister.  Thus,  if  the  in- 
testate left  surviving  a  brother  and  the  children  of  a 
deceased  sister,  though  such  children  could  not  otherwise 
assert  any  right  to  share  the  intestate's  property  with 
the  surviving  brother,  since  he  stands  in  a  closer  degree  of 
relationship  to  the  intestate,  they  can  do  so  by  reason  of 
their  right  of  representation  of  the  intestate.^^  In  either 
case,  descendants  of  a  deceased  brother  or  sister  of  the 
intestate   stand  in  the  place  of  such  brother  or  sister  as 

37.  In  re  Lynch's  Estate,  132  453,  61  Am.  Dec.  632;  Beebee 
Cal.  214,  64  Pac.  284;  Ector  v.  v.  Griffing,  14  N.  Y.  235;  Stock- 
Grant,  112  Ga.  557,  53  L.  R.  A.  ton  v.  Frazier,  81  Ohio  St.  227, 
723,  37  S.  E.  984;  Aldridge  v.  90  N.  E.  168;  Edwards  v.  Barks- 
Montgomery,  9  Ind.  302;  Ander-  dale,  2  Hill  Eq.  416;  Baker  v. 
son  V.  Bell,  140  Ind.  375,  29  L.  Chalfant,  5  Whart.  477;  Lynch's 
R.  A.  541,  39  N.  E.  7:T5;  Neely  v.  Appeal,  132  Pa.  St.  422,  19  Atl. 
Wise,  44  Iowa,  544;  Clay  v.  281;  Marlow  v.  King,  17  Tex.  177. 
Cousins,  1  T.  B.  Men.  (Ky.)  75  38.  2  Blackst.  Comm.  217. 
Sheffield  v.  Lovering,  12  Mass.  39.  1  Stimson's  Am.  St.  Law, 
489;  Rowley  v.  Stray,  32  Mich.  §  3138. 
70:    Prescott    v.    Carr,    29    N.    H. 


1900  Eeal  Pkoperty.  [§  493 

regards  the  right  to  share  with  any  surviving  brothers 
and  sisters  of  the  intestate  or  descendants  of  other 
deceased  brothers  and  sisters.  In  some  states  the  right 
of  representation  is  not  conceded  to  all  descendants  of 
a  deceased  brother  or  sister,  but  is  restricted  to  the 
children  of  such  brother  or  sister,  the  result  of  which 
would  be,  in  the  case  stated  above,  that  the  surviving 
brother  would  take  all  the  intestate's  property,  to  the 
exclusion  of  the  gi'andchildren  of  the  deceased  sister, 
though  the  children  of  the  deceased  sister  would  have 
been  entitled  had  they  survived.^^*  A  statute  providing 
that  no  representation  shall  be  allowed  beyond  the  degree 
of  brothers'  and  sisters'  children  precludes  all  persons 
not  so  closely  related  from  taking  by  representation. 
Under  such  a  statute,  for  instance,  uncles  and  aunts  take 
to  the  exclusion  of  the  children  of  deceased  uncles  and 
aunts.^*^  But  a  statute  thus  limiting  representation 
within  certain  degrees  of  kindred  does  not  limit  inheri- 
tance within  those  degrees,  that  is,  persons  beyond  those 
degrees,  if  all  in  the  same  degree  of  kindred  to  the  in- 
testate, may  take  as  heirs  without  reference  to  the  doc- 
trine of  representation.^^ 

Ordinarily,  if  the  statute  expressly  provides  that 
certain  classes  of  relatives  shall  take  by  representation, 
that  doctrine  cannot  apply  in  favor  of  others.^-  And  a 
provision   that   the    property    shall,   in   a   certain   con- 

39a.     1     Wocruer,     Administra-  42.     Curry's     Estate,     39      Cal. 

tion,     §     71;     1     Dembitz,     Land  529;    Quinby    v.    Higgins.    14    Me. 

Titles,  §  35.  309;      Bigelow     v.     Morong,     103 

40.  Porter  v.  Askew,  11  Gill.  Mass.  287;  In  re  Chapoton's  Es- 
&  J.  346;  Clary  v.  Watkins,  64  tate,  104  Mich.  11,  53  Am.  St. 
Neb.  386,  89  N.  W.  1042;  John-  Rep.  454,  61  N.  W.  892;  Douglas 
ston  V.  Chesson,  6  Jones  Eq.  (59  v.  Cameron,  47  Neb.  358,  66  N. 
N.  C.)  146.  And  first  cousins  W.  430;  Clayton  v.  Drake,  17 
to  the  exclusion  of  children  of  Ohio  St.  367;  Brennemans  Ap- 
first  cousins.  Adee  v.  Campbell,  peal,  40  Pa.  St.  115;  North  v. 
79  N.  Y.  52;  In  re  Clendaniel's  Valk,  Dud.  Eq.  (S.  C.)  212;  In  re 
Estate,   12  Phila.   54.  Robert's    Estate,    84    Wash.     163, 

41.  Hoffman     v.     Watson,     109  146   Pac.   398. 
Md.    532,    72   Atl.    479. 


§  493]  Intestate  Succession.  1901 

tingency,  descend  to  the  next  of  kin  "in  equal  degree," 
has  ordinarily  been  construed  as  excluding  any  right,  in 
those  who  are  not  next  of  kin,  to  share,  by  way  of 
representation,  with  those  who  are  next  of  kin.^^"* 

The  doctrine  of  representation,  as  applied  when 
there  are  claimants  in  different  degrees  of  relationship 
to  the  intestate  serves,  so  far  as  it  may  be  available  un- 
der the  statute,  to  prevent  the  exclusion  of  the  claimants 
of  the  more  remote  degree  from  all  share  in  the  in- 
testate's property.  When  all  the  claimants  are  in  the 
same  degree,  they  are  all  equally  the  intestate's  next 
of  kin,  and  consequently  they  may  all  share  in  the  in- 
testate's  property  without  reference  to  the  doctrine  of 
representation.  Whether,  in  such  case,  they  take  by 
way  of  representation  or  purely  in  their  own  right  may 
however  be  important  for  the  purpose  of  determining 
whether  they  take  per  stirpes  or  per  capita.*^  If,  for 
instance,  the  nephews  and  nieces  of  the  intestate  are  to 
be  regarded  as  taking  by  way  of  representation,  the 
children  of  each  brother  or  sister  take  together  their 
parents  share,  that  is,  they  take  per  stirpes,  while  if 
they  do  not  take  as  representing  their  parent,  they  take 
per  capita.  The  statutes  fixing  the  course  of  descent 
have  more  usually  been  construed  as  calling  for  the 
application  of  the  doctrine  of  representation  only  when 
the  claimants  are  of  unequal  degree,  and  not  when  they 
are  all  of  the  same  degree,  the  result  of  such  construc- 
tion being  that,  in  the  latter  case,  they  take  per  capita 

43.  In  re  Nigro's  Estate,  172  Ark.  52.  9  S.  W.  435;  Houston 
Cal.  474,  156  Pac.  1019;  Van  v.  Davidson,  45  Ga.  574;  Cox  v. 
Cleve  V.  Van  Fossen,  73  Mich.  Cox,  44  Ind.  368;  Doane  v.  Free- 
342,  41  N.  W.  258;  Conant  v.  man,  45  Me.  113;  McComas  v. 
Kent,  130  Mass.  178;  Douglas  v.  Amos,  29  Md.  132;  Balch  v. 
Cameron,  47  Neb.  358,  60  N.  W.  Stone,  149  Mass.  39.  20  N.  E. 
430;  Schenck  v.  Vail,  24  N.  .1.  322;  Ernst  v.  Freeman's  Estate. 
Eq.  538;  In  re  Sullivan's  Estate,  129  Mich.  271,  88  N.  W.  636: 
48  Wash.  631,  94  Pac.  48.'],  95  Jones  v.  Barnett,  30  Tex.  637; 
Pac.    71.  2   Blackst.  Coram.   417. 

44.  See    Garrett    v.    Bean,    51 
2  R.  P.— 45 


1902 


Keal  Propeety. 


[§  494 


and  not  per  stirpes y^*  A  different  construction  has,  how- 
ever, occasional!}^  been  i^laced  on  a  particular  statute.^** 
In  some  states  there  is  a  specific  provision  that  when 
all  those  entitled  are  of  the  same  degree  of  kindred  to 
the  intestate,  they  shall  take  per  capita.*'^ 

§  494.  Ancestral  lands.  At  common  law,  in  case 
of  failure  of  lineal  descendants  of  the  person  last  seised, 
the  land  passed  to  his  collateral  relations  only  when 
they  were  of  the  blood  of  the  first  purchaser,  by  whom 
the  land  was  brought  into  the  family.^*  This  rule  of  the 
common  law  survives  to  some  extent  in  the  statutory  pro- 
visions, found  in  a  number  of  states,  to  the  effect  that,  if 
the  land  came  to  the  intestate  either  by  descent,  or  by 
gift  or  devise  from  an  ancestor,  or  sometimes,  ''on  the 
part  of"  or  ''from"  his  father  or  mother,  it  shall  pass 
to  such  kindred  as  are  of  the  blood  of  the  ancestor  from 
whom  it  was  derived  by  him.^^     The   statutes  of  this 


45.  Byrd  v.  Lipscomb,  20  Ark. 
19;  Houston  v.  Davidson,  45 
Ga.  574;  In  re  Nigro's  Estate, 
172  Cal.  474,  156  Pac.  1019; 
Baker  v.  Bourne,  127  Ind.  466, 
26  N.  E.  1078;  Snow  v.  Snow, 
111  Mass.  389;  Nichols  v.  Shep- 
ard,  63  N.  H.  391;  Staubitz  v. 
Lambert,  71  Minn.  11,  73  N.  W. 
511;  Eshleman's  Appeal,  74  Pa. 
St.  42;  Fisk  v.  Fisk,  60  N.  J. 
Eq.  195,  46  Atl.  538;  Wagner  v. 
Sharp,  33  N.  J.  Eq.  520;  Miller's 
Appeal,  40  Pa.  St.  387;  Stent  v. 
McLeod,  2  McCord  Eq.  (S.  C.) 
354;  Davis  v.  Rowe,  6  Rand. 
(Va.)  355;  Ball  v.  Ball,  27  Gratt. 
(Va.)    325. 

46.  McComas  v.  Amos,  29 
Md.  132;  Odam  v.  Caruthers,  6 
Ga.  39;  Crump  v.  Faucett,  70  N. 
C.  345;  Jackson  v.  Thurman,  6 
Johns.    (N.  Y.)    322. 

The   English    statute    of   Distri- 


bution has  been  construed  as 
giving  the  property  to  the  direct 
descendants  of  the  intestate, 
when  in  equal  degree,  per  stirpes, 
and  to  the  collateral  relatives, 
when  in  equal  degree,  per  capita. 
Lloyd  V.  Tench,  2  Ves.  Sen.  213; 
Re  Ross's  Trusts,  L.  R.  13  Eq 
286;    In  re  Natt,  37  Ch.  Div.  517. 

47.  1  Stimson's  Am.  St.  Law, 
§  3137.  See  Ellis  v.  Harrison, 
140  N.  C.  444,  53  S.  E.  299; 
Witherspoon  v.  Jernigan,  97  Tex. 
98,  76  S.  W.  445;  Moore  v. 
Conner— (Va.)—,   20   S.  E.  936. 

48.  Litt.  §  4;  2  Blackst.  Coram. 
220.  See  ante.  §  487.  Thus,  if 
A  purchased  land  and  it  de- 
scended to  his  son  B,  wbo  was 
seised,  and  B  died  without  issue, 
the  land  descended  to  such  col- 
lateral relatives  of  B  only  as 
were  of  the  blood  of  A. 

49.  1    Stimson's   Am.    St.   Law, 


§  494]  Intestate   SuccKSiiioN.  1903 

general  character  differ  to  so  great  an  extent  in  their 
phraseology  that  any  general  statements  with  reference 
thereto  are  difficult,  if  not  impossible,  to  niake.-'^''  In 
some  the  exclusion  of  collateral  kindred  not  of  the  blood 
of  the  ancestor  from  whom  the  property  was  derived 
applies  only  as  between  kindred  in  equal  degree,  and 
in  some  only  in  case  there  is  a  relative  of  the  blood  of 
that  ancestor  within  a  certain  degree  named,  and  in 
some  it  excludes  the  kindred  not  of  the  ancestor's  blood 
in  favor  of  any  existing  kindred  of  his  blood,  though 
not  ordinarily,  by  the  terms  of  the  statute,  to  the  extent 
of  allowing  the  property  to  escheat  for  failure  of  heirs.'*'^ 

The  statutes  have  ordinarily  been  construed  as 
restricting  the  right  of  inheritance  to  the  blood  of  the 
ancestor  from  whom  the  land  passed  directly  to  the  in- 
testate, and  not  to  the  blood  of  the  ancestor  who  first 
brought  the  property  into  the  family,  as  at  common 
law.^^ 

When  the  statute  speaks  of  a  gift  or  devise  from 
an  ancestor,  the  expression  ''ancestor"  might  reason- 
ably, it  would  seem,  be  construed  as  referring  to  a  person 
from  whom  the  donee  or  devisee  did  actually  inherit,  or 
would  have  inlierited  had  the  gift  or  devise  not  been 
made,  rather  than  as  referring  to  one  from  whom  he 

§    3101;    1    Dembitz,   Land    Titles,  v.    Shailer,    46   Conn.    119;    Smith 

§    36.  V.   Groom,   7   Fla.    81;    Murpliy   v. 

49a.     The   cases  construing  the  Henry,    35    Ind.    442;     Cutter    v. 

statutes  in   this  regard   are  most  Waddingham,  22  Mo.  206;   Den  v. 

conveniently     collected     in     note  Jones,    8    N.    J.    L.    340;    Wheeler 

to    L.    R.    A.    1916C,    902    et    seq.  v.     Clutterbuck,     52     N.     Y.     67; 

See    also    editorial    note    15    Col-  Hyatt    v.    Pugsley,    33    Barb.    (N. 

umbia   Law  Rev.   526.  Y.)     373;     Clayton    v.    Drake,    17 

50.  That  the  property  does  not  Ohio  St.  367;  White  v.  White, 
escheat,  see  State  University  v.  19  Ohio  St.  531;  Morris  v.  Pot- 
Brown,  1  Ired.  L.,  23  N.  Car.  ter,  10  R.  L  58;  Arnold  v.  O'Con- 
387;  Dowell  v.  Thomas,  13  Pa.  nor,  397  R.  L  557,  L.  R.  A.  1916C, 
St.  41;  Parr  v.  Bankhart,  22  898,  94  Atl.  145.  Contra,  Lewis 
Pa.    St.    291.  V.    Gorman,    5    Pa.    St.    164;    Wil- 

51.  Gardner  v.  Collins,  2  Pet.  kerson  v.  Bracken,  2  Ired  L. 
(U.   S.)    58,  7  L.   Ed.   347;    Clark  (24   N.    C.)    315. 


190J:  Ee.\l  property.  [§  49^ 

might  have  inherited  had  some  other  heir  not  inter- 
vened.^-  For  instance,  the  fact  that  the  person  who  de- 
vised the  land  to  the  intestate  was  his  micle  or  his 
cousin,  so  that,  had  the  latter  not  left  a  brother  surviv- 
ing, the  property  would  have  come  to  the  intestate  by 
descent,  would  not  seem  to  make  such  testator  the 
ancestor  of  the  intestate  within  the  meaning  of  the 
statute.  A  brother  or  sister  may  be  an  ancestor  within 
such  a  provision.^^  That  the  statute  provides  for  the 
descent  of  property,  in  a  certain  contingency,  from 
husband  to  wife,  or  from  wife  to  husband,  has  in  at 
least  one  state  been  regarded  as  not  making  the  one 
consort  the  ancestor  of  the  other,  for  the  purpose  of  the 
statutes  referred  to.^^ 

In  case  the  legal  and  equitable  titles  to  the  land  in 
question  came  to  the  intestate  from  ditferent  sources,  it 
is  the  source  of  the  legal  title,  rather  than  of  the  equit- 
able, which  determines  whether  it  is  to  be  regarded  as 
coming  from  a  particular  ancestor.^'*  But  the  fact  that 
the  ancestor  paid  for  the  land,  or  that  it  was  paid  for 
from  his  estate,  has  been  regarded  as  making  it  a  gift 
to  the  intestate  from  the  ancestor,  though  it  was  con- 
veyed by  the  vendor  directly  to  the  intestate.^® 

52.  Such       construction       was       699. 

adopted  in  Burgwyn  v.  Devereux.  55.     Goodright  v.  WeUs,  Dougl. 

1     Ired.    Law     (23    N.     C.)     583;  771;    Selby   v.   Alston,    3   Ves.   Jr. 

Osborne   v.   Widenhouse,    3    Jones  339;    Hill  v.   Heard,   104  Ark.  23, 

Eq.     (56     N.     C.)     238.       But    in  42    L.    R.    A.    (N.    S.)     446,    Ann. 

Greenlee    v.    Davis,    19    Ind.    60,  Cas.    1914C,    403,    148    S.   W.    254; 

the     word     "ancestor"     was     con-  Wells  v.  Head,  12  B.  Mon.    (Ky.) 

strued  as  equivalent  to  "kindred."  166;      Nicholson     v.      Halsey,      1 

And    to    that    effect    is    Hostetler  Johns.   Ch.    (N.  Y.)    417;    Higgins 

V.  Peters,   94   Ohio  17,   113   N.   E.  v.    Higgins,    57    Ohio    St.    239,    48 

656.  N.    E.    943;    Russell   v.    Bruer,    64 

53.  Benedict  v.  Brewster,  14  Ohio  St.  1;  Shepard  v.  Taylor, 
Ohio,  368;  Cutter  v.  Waddingham,  15  R.  I.  204,  3  Atl.  382,  16  R.  I. 
22   Mo.   206.  166,    13    Atl.    105. 

54.  Brower  v.  Hunt,  18  Ohio  56.  Galloway  v.  Robinson,  19 
St.  311;  Stembel  v.  Martin,  50  Ark.  396;  Cotton  v.  Citizens' 
Ohio  St.  495.  Contra.  Cornett  Rank.  97  Ark.  568.  135  S.  W. 
V.  Hough,  136   Ind.  387,  35  N.  E.  346;   Prick  Coke  Co.  v.  Longhead, 


§  49-1:]  Intestate  Succession.  1905 

Generally  speaking,  land  acquired  by  means  of  an- 
cestral land,  as  by  purchase  with  the  proceeds  of  the 
sale  of  the  latter, ^^^  or  by  exchange,^^  is  not  ancestral. 
But  ancestral  land  would  not  ordinarily  lose  its  charac- 
ter as  such  because  a  partition  thereof  between  the  heirs 
is  elTected.'^'-^  If  one  who  owns  land  which  came  to  him 
from  an  ancestor  conveys  it  to  another  and  takes  a  re- 
conveyance back,  the  land  will  ordinarily  lose  its  ances- 
tral character  and  pass,  on  his  death  intestate,  as  having 
been  newly  acquired  by  him.'^'^ 

Of  somewhat  the  same  nature  as  the  statutory  pro- 
visions above  referred  to,  as  making  the  course  of  de- 
scent dependent  upon  the  source  of  the  intestate's  title, 
are  the  provisions  found  in  a  number  of  states  to  the 
effect  that,  upon  the  death  of  a  minor  unmarried,  leav- 
ing property  which  came  from  either  parent,  by  descent 
or,  in  some  states,  by  gift  or  devise,  it  shall  descend  to 
the  other  children  of  the  same  parent,  or  to  the  issue 
of  such  children.*'^  The  effect  of  a  statute  of  this 
character  has  in  several  cases  been  said  to  be  to  make 
the  property  pass  to  the  surviving  children  as  by  de- 
scent, not  from  the  deceased  child,  but  from  the  parent, 

203  Pa.  168,  52  Atl.  172.     Contra,  ante,  §  203. 

Pattersnn    v.     Lamson,     45     Ohio  60.     Co.     Litt.     12b;      Watkin«?, 

St.   77.     Conipare   Carter   v.    Day,  Law    of   Descents    (4th    Ed.)    241 

59   Ohio   St.   96,   69   Am.   St.   Rep.  et    seq;    Holme    v.    Shinn,    62    N. 

757,    51    N.    E.    967.  J.  Eq.  1,  49  Atl.  151;    Kihlken  v. 

57.  Watson  v.  Thompson.  12  Kihlken,  59  Ohio  St.  lOG,  69  Am. 
R.  I.  466;  Martin  V.Martin,  98  Ark.  St.  Rep.  757.  51  N.  E.  967; 
93,  135  S.  W.  348.  See  Adams  v.  Nesbitt  v.  Trindle,  64  Ind.  183. 
Anderson,  23  Miss.  705;  Cornett  But  see  Dudrow  v.  King,  117 
V.   Hough,    136    Ind.    387.  Md.  182,  83  Atl.  34,  and   the  edi- 

58.  Armington  v.  Armington,  torial  note  thereon,  12  Columbia 
28   Ind.    74;    Brower   v.   Hunt,    18  Law    Rev.    625. 

Ohio   St.   311.  61.     1    Stimson's   Am.   St.    Law. 

59.  Martin  v.  Martin,  98  Ark.  §  3101;  1  Dembitz.  Land  Titles, 
93,  135  S.  W.  348;  Conkling  v.  §  36.  See  In  re  Van  Orsdol's 
Brown,  8  Abb.  Pr.  N.  S.  (N.  Estate.  94  Neb.  98.  142  N.  W. 
Y.)  345;  Lawson  v.  Townlev,  686;  and  editorial  note,  L.  R. 
90  Ohio,   67.   106  N.   E.   780.     Sae  A.  1916C,  at  p.  926. 


1906  IJeal  Property.  [§  495 

as  if  such  cliild  had  died  in  the  parent's  lifetime.''-  But 
nevertheless  it  has  been  occasionally  decided  that  prop- 
erty which  came,  by  force  of  the  statute,  to  the  deceased 
minor  child  upon  the  death  of  another  deceased  minor 
child,  did  not  come  from  the  deceased  parent,  so  as  to  be 
within  the  operation  of  the  statute.*'^  The  statute  does 
not  apply  when  the  property  came  from  a  grand  parent 
and  not  from  a  parent,''^  and  when  it  in  terms  applies 
only  to  property  acquired  by  descent,  it  does  not  ap- 
ply to  property  acquired  by  devise.^^ 

§  495.  Illegitimate  children.  At  common  law,  a 
child  born  out  of  wedlock  was  regarded  as  filiiis  nullius, 
and  as  consequently  bearing  no  relationship  to  any 
persons  other  than  his  own  offspring.  Consequently 
he  could  be  the  heir  neither  of  his  own  father  or  mother, 
nor  of  any  other  person,  and  no  persons  could  inherit 
from  him  except  the  heirs  of  his  body.^*'  This  rule  has 
been  changed  generally  in  this  country  by  various  statu- 
tory provisions.  In  the  first  place,  the  state  statute 
frequently  provides  that  the  intermarriage  of  the 
parents  after  the  birth  of  the  child,  or  such  intermar- 
riage when  accompanied  by  the  father's  acknowledgment 
of  the  child,  shall  render  the  child  legitimate,  and  in  some 
states  the  acknowledgment  by  the  father  without  inter- 
marriage has  this  effect,  subject  to  the  proviso,  usually, 
that  an  acknowledgment  of  the  child  shall  not  enable 
the  child  to  inherit  from  the  kindred  of  the  father.^'^ 

62.  In  re  North's  Estate,  48  64.  Walden  v.  Phillips,  86  Ky. 
Conn.  583;  Nash  v.  Cutler,  16  302,  5  S.  W.  757;  Sedgwick  v. 
Pick.  (Mass.)  491;  Crowell  v.  Minot,  6  Allen  (Mass.)  171; 
Clough,  23  N.  H.  207;  Perkins  Whitten  v.  Davis,  18  N.  H,  88. 
V.  Simons,  28  Wis.  90;  In  re  65.  Donahue's  Estate,  36  Cal. 
Fort's  Estate,  14  Wash  10,  44  329;  Nash  v.  Cutler,  16  Pick. 
Pac.   104.  (Mass.)     491;     BurTte    v.     Burke, 

63.  Driskell    v.    Hanks,    18  B.  34    Mich.    451. 

Mon.      (Ky.)      855;      Goodrich     v.  66.     1    Blackst.    Comm.    459;    2 

Adams,  138  Mass.  552;  Walkers  v.  Kent's  Comm.  212. 

Boaz,  2  Rob.    (Va.)    485.     Contra,  67.     1    Stimson's   Am.    St.   Law, 

Perkins  v.   Simons,  28  Wis.   90.  §§    6631,    6632.      There    is   an    ex- 


§  496]  Intestate  Succession.  1907 

In  most  states,  by  statute,  the  illegitimate  children  in- 
herit from  the  mother  equally  with  the  legitimate  chil- 
dren, and  in  some  states  they  inherit  also  from  her 
kindred,  though  in  a  majority  of  the  states,  while  inherit- 
ing from  the  mother,  they  do  not  inherit  from  her  kin- 
dred. In  a  few  states  they  inherit  from  the  mother  only 
in  case  of  default  of  lawful  issue."^'  The  property  of  an 
illegitimate  child  will  descend  to  the  sur\'iving  husband 
or  wife,  or  to  the  children,  as  in  the  case  of  any  other 
person  dying  intestate.  In  default  of  such  others  en- 
titled to  inherit,  the  decedent's  property  goes  usually, 
under  the  statute,  to  the  mother  and  the  latter 's  kin- 
dred.«9 

§  496.  Unborn  children.  At  common  law,  a  cliild 
en  ventre  sa  mere  at  the  time  of  the  death  of  the  intes- 
tate, if  subsequently  born  alive,  is  regarded  as  living  at 
the  time  of  such  death,  for  the  purpose  of  taking  from 
him  by  descentj^  this  according  with  a  general  rule 
that  such  a  child  is  to  be  regarded  as  living  when  it  is 
to  its  interest  so  to  regard  it.'^^  The  common  law  rule 
has  been  applied  in  a  number  of  decisions  in  this  coun- 
try,'^^  occasionally  subject  to  the  qualification  that  not 
only  must  the  child  be  born  alive,  but  the  period  of  its 

ceUent   summary   of   the   statutes,  71.     See      Doe      d.      Clarke      v. 

vith    references    to    some    of    the  Clarke,     2     H.     El.     399;      Gray 

decisions    thereon.    In   1    Dembitz.  Perpetuities,     §     220;      Williams, 

Land  Titles,   §§   39,  40.     See  also  Real    Prop.    (21st   Ed.)    3G3.     See 

27  Am.  &  Eng.  Encyc.  Law    (2nd  for    a    general    discussion    of    the 

Ed.)     327.  status   of   such    a   child,   editorial 

68.  1    Stimson's    Am.    Law,    §  note  26  Harv.  Law  Rev.  638. 
3151;    1  Woerner,  Administration,  72.     Morrow     v.     Scott.     7     Ga. 
§    75.  5.15;     Barr    v.    Gardner,    259    111. 

69.  1  Stimson's  Am.  St.  Law,  256,  102  N.  E.  2S7;  Massie  v. 
§  3154;  1  Woerner,  Administra-  Hiatt's  Adm'r.  82  Ky.  314; 
tion,   §   75.  Aubuchon  v.  Render,  44  Mo.  560; 

70.  Watkins,  Law  of  Descents,  Giles  v.  Solomon,  10  Abb.  Prac. 
ch.  4;  Challis,  Real  Prop.  (3rd  (N.  S.)  97;  Hill  v.  Moore.  1 
Ed.)    139.  Murph.    (5    N.    C.)    23:5;    Pear.son 

V.    Carlton,    18    S.    C.    47. 


1908  Eeal  Peopekty.  [§  496 

foetal  existence  must  have  been  such  that  its  contin- 
uance in  life  may  be  reasonably  anticipated,''^"  and  in  a 
number  of  states  the  common  law  rule  has  been  confirmed 
by  statute.'^'*  In  many  states,  however,  the  statute  in 
terms  provides  for  inheritance  by  posthumous  children 
only  who  are  the  children  of  the  intestate,  or,  in  some, 
who  are  descended  from  him.'^'  A  statute  thus  ex- 
cluding posthumous  children  other  than  children  of 
the  intestate  has  been  construed  to  exclude  only  those 
born  after  the  death  of  the  intestate,  and  not  to  exclude 
a  relative  previously  born  merely  because  he  happened 
to  have  been  born  after  the  death  of  his  own  father/^ 

A  child  which  was  en  ventre  sa  mere  at  the  time  of 
the  intestate's  death,  and  entitled  to  take  by  descent 
from  him,  cannot  be  divested  of  his  interest,  it  has  been 
held,  by  a  proceeding  to  which  he  was  not  a  party,  even 
though  the  decree  therein  was  rendered  before  his 
birth.'^ 

The  case  of  descent  to  a  child  en  ventre  sa  mere  at 
the  time  of  the  intestate's  death  prosents  one  case  of 
what  has  been  referred  to  as  the  doctrine  of  shifting 
inheritances,  by  which,  as  it  was  recognized  at  common 
law,  the  estate  of  the  person  wlio  was  next  in  the  line 
of  descent  at  the  time  of  the  intestate 's  death  was  liable 
to  be  divested  in  favor  of  one  subsequently  born  who  was 
nearer  in  the  line  of  descent.'^^  In  so  far  as  descent  to 
a  child  en  ventre  sa  mere  at  the  time  of  the  intestate's 
death  is  recognized,  the  inheritance  necessarily  shifts, 

73.  Nelson  v.  Iverson,   24  Ala.      278,    4    Atl.    679. 

9,    60   Am.    Dec.   442;;    Harper   v.  77.     Botsford    v.    O'Conner,    57 

Archer,   4   Sm.   &   M.    (Miss.)    99,  111.    72;    Massie   v.    Hiatt,    82    Ky. 

43    Am.    Dec.    472;     Marsellis    v.  314;    Giles    v.    Solomon,    10    Abb. 

Thalhimer,    2    Paige    35,    21    Am.  Pr.    N.    S.    97;     Deal    v.    Sexton, 

Dec.    66.  144   N.   C.   157,   119  Am.   St.   Rep. 

74.  1    Stimson's    Am.    St.    Law  943,   56    S.   E.    691. 

§    3136.  78.     2    Blaekst.    Comm.    208;    3 

75.  1  Stimson's  Am.  St.  Law,  Cruise's  Dig.  tit.  29  ch.  3,  §  11; 
§§  2844,  3135,  3136;  1  Woerner,  Watkins,  Law  of  Descents,  169, 
Administration,  §  74.  185. 

76.  Shriver    v.    State,    65    Md. 


§  497]  Intestate   Succession.  1909 

either  partially  or  wholly,  npon  his  subsequent  birth. 
But  in  several  eases  in  this  country  the  doctrine  of  shift- 
ing inheritances  has  been  repudiated,  in  so  far  as  it  was 
asserted  in  favor  of  a  person  born  after  the  intestate 's 
death  who  was  not  at  the  time  of  such  death  en  voitre. 
sa  mere/^  Occasionally  the  statute  provides  that  no 
child  born  after  the  intestate's  death  shall  take  bv 
descent  unless  born  within  ten  months  thereafter.**^ 

§  497.  Adopted  children.  The  statutes  authorizing 
the  adoption  of  children  quite  frequently  contain  express 
provisions  as  to  inheritance  both  by  and  from  an 
adopted  child.^^  Apart  from  any  such  express  provision, 
the  effect  of  the  adoption  is  ordinarily  to  entitle  the 
child  to  inlierit  from  the  adoptive  parent  as  if  he  were 
the  latter 's  own  child, ^^  and  to  entitle  the  child  of  the 
adopted  child  to  inherit  from  the  adoptive  parent.'^'^ 
But  the  statutes  do  not  ordinarily  operate  to  give  to  thb 
adopted  child  a  right  to  inherit  from  the  kindred  of  the 
adoptive    parent,**    they    frequently    containiuij  an  ex- 

79.  Bates  v.  Brown,  5  Wall.  Me.  578,  55  Atl.  520;  Ross  v. 
(U.  S.)  710,  18  L.  Ed.  535;  Cox  Ross,  129  Mass.  24.3,  37  Am.  Rep. 
V.  Matthews,  17  Ind.  367;  Drake  321;  Morrison  v.  Estate  of  Ses- 
V.  Rogers,  13  Ohio  St.  21;  Melton  sion's,  70  Mich.  297,  14  Am.  St. 
V.  Davidson,  86  Tenn.  129,  5  S.  Rep.  500,  38  N.  W.  249;  Rowans 
W.  530.  The  doctrine  was  for-  Estate,  132  Pa.  299,  19  Atl.  82. 
merly  recognized  in  North  Car-  See  editorial  note  5  Virginia  Law 
olina.        Ciitlar      v.      Cutlar,      2  Rev.   349. 

Hawkes    (9   N.   C.)    324,   but   was  83.     In  re  Darling's  Estate.  173 

superseded    by    the    act    of    1823.  Cal.    221,    159    Pac.    606;    Pace    v. 

Rutherford   v.   Gregn,   2   Ired.   Eq.  Klink,     51     Ga.     220;      Gray     v. 

(37   N.   C.)    121.  Holmes,  57  Kan.  217,  33  L.  R.  A. 

80.  1  Stimson's  Am.  St.  Law,  207,  45  Pac.  596:  Power  v. 
§  3136.  Hafley,  85  Ky.  671.  4   S.  W.  683; 

81.  1  stimson's  Am.  St.  Law,  Herrick's  Estate,  124  Minn.  85, 
§  6647.  144  N.  W.  455;    Bernero  v.  Good- 

82.  Re  Newman,  75  Cal.  213,  7  win,  267  Mo.  427.  184  S.  W.  74; 
Am.  St.  Rep.  146,  16  Pac.  887;  Batchelder  v.  Walworth,— (Vt.)  — 
Barnes  v.  Allen,  25  lad.  222;  82  Atl.  7;  See  In  re  Webb's  Eh- 
Merritt    v.    Morton,    143    Ky.    133,  tate,  250  Pa.  179.  95  Atl.  419. 

33   L.   R.   A.    (N.    S.)    V.id,   136    S.  84.     Van   Matre   v.   Sankey,   148 

W.    133;    Virgin    v.    Marwlck,    97       ill.  536,  2.S  L.  R.  A.   665.  39  Am. 


1910 


Eeal  Property. 


[§  497 


plicit  provision  to  this  effect.  The  adopted  child  may, 
it  has  been  held,  inherit  from  his  natural  parent  as  he 
would  have  done  had  he  never  been  adopted.^^  But 
there  are  decisions  to  the  effect  that  one  cannot 
inherit  from  the  adoptive  parent  both  as  an  adopted 
child  and  as  a  blood  relative  of  such  parent.^^ 


St.  Rep.  196,  36  N.  E.  628; 
Wallace  v.  Noland,  246  111.  535, 
138  Am.  St.  Rep.  247,  92  N.  E. 
535;  Barnhizel  v.  Ferrell,  47  Ind. 
335;  Sunderland  h  Estate,  60 
Iowa,  732,  13  N.  W.  655;  Merritt 
V.  Morton,  143  Ky.  133,  33  L. 
R.  A.  (N.  S.)  139,  136  S.  W. 
133;  Van  Derlyn  v.  Mack,  137 
Mich.  146,  66  L.  R.  A.  437,  109 
Am.  St.  Rep.  669,  100  N.  W.  278, 
4  Ann.  Cas.  879;  Hockaday 
V.  Lynn,  200  Mo.  456,  8  L.  R.  A. 
(N.  S.)  117,  118  Am.  St.  Rep. 
672,  9  Ann.  Cas.  775,  98  S.  W. 
585;  Meader  v.  Archer,  65  N.  H. 
214;  Phillips  v.  McConica,  59 
Ohio  St.  1,  51  N.  E.  445,  69  Am. 
St.  Rep.  753;  Burnett's  Estate, 
210  Pa.  599,  69  Atl.  74;  Batchel- 
ler-Durkee  v.  Batcheller,  39  R. 
I.  45,  97  Atl.  378;  Helms  v. 
EUiott,  89  Tenn.  446,  10  L.  R.  A. 
635,  14  S.  W.  930:  Moore  v. 
Moore,  35  Vt.  98.  "The  ancestors 
of  the  adopter  are  presumed  to 
know  their  relatives  by  hlood, 
and  to  have  them  in  mind  in  the 
distribution  of  their  estates, 
either  by  will  or  descent,  but 
they  cannot  be  expected  to  keep 
informed  as  to  adoption  proceed- 
ings in  the  probate  court  of  the 
coXinties  of  this  state;  and  to 
allow  an  adopted  child  to  inherit 
from  the  ancestors  of  the  adop- 
ter would  often  put  property  into 
the  hands  of  unheard-of  adopted 
children,    contrary   to    the    wishes 


and  expectations  of  such  ances- 
tors." Burket,  J.,  in  Phillips  v. 
McConica,  59  Ohio  St.  1,  C9  Am. 
St.  Rep.  753. 

85.  Barnhizel  v.  Farrell,  47 
Ind.  335;  Wagner  v.  Warner,  50 
Iowa,  532;  Clarkson  v.  Hatton, 
143  Mo.  47,  39  L.  R.  A.  748,  65 
Am.  St.  Rep.  635,  44  S.  W.  761; 
Upson  V.  Noble,  35  Ohio  St.  655; 
Compare  dicta  in  Re  Jobson's 
Estate,  164  Cal.  312,  43  L.  R.  A. 
(N.  S.)  1062,  128  Pac.  938;  Re 
Havsgord's  Estate,  34  S.  D.  131, 
147  N.  W.  378.  That  the  adopted 
son  may  inherit  from  his  natural 
grandfather,  see  In  re  Darling's 
Estate,  173  Cal.  221,  159  Pac. 
606. 

In  Indiana  it  has  been  d«eided 
that  a  child  adopted  by  a  hus- 
band during  his  former  marriage 
was  a  child  "by  a  previous  wife" 
within  a  statute  giving  a  share 
in  his  estate  to  such  a  child. 
Markover  v.  Krauss,  132  Ind.  294, 
17  L.  R.  A.  806,  31  N.  E.  1047; 
Patterson  v.  Browning,  146  Ind. 
160,   44   N.   E.   993. 

An  adopted  child  of  a  deceased 
devisee  has  been  regarded  as  "an 
heir  in  a  descending  line"  of 
such  devisee  within  a  statutory 
provision  substituting  such  heir 
in  place  of  the  deceased  devisee, 
so  as  to  prevent  a  lapse.  Clark 
v.  Clark,  76  N.  H.  551,  85  Atl. 
758;  Warren  v.  Prescott,  84  Me. 
483,    17   L.   R.   A.   435.   30   Am.   St. 


497] 


Intestate  Succession", 


19]1 


As  regards  inheritance  from  the  adopted  child,  it  is 
occasionally  provided  by  the  statute  that  property  ac- 
quired by  him  by  gift,  devise  or  descent  from  the  adopt- 
ive parent  shall  pass,  upon  his  death  intestate  and  with- 
out issue,  to  such  parent,  and  in  some  states  that  prop- 
erty otherwise  acquired  by  him  shall  so  pass.«"  There 
is  at  least  one  decision  to  the  effect  that,  even  in  the 
absence  of  any  statutory  provision  in  this  regard,  all 
property  of  the  child,  in  such  case,  passes  to  the 
adoptive  parent,  to  the  exclusion  of  his  blood  relatives.^"* 
There  are,  on  the  other  hand,  decisions  that  all  his  prop- 
erty passes  to  his  own  kindred  to  the  exclusion  of  the 
adoptive  parent,^'-*  such  a  view  being  occasionally  based 
on  the  fact  that  the  statute,  providing  in  te?-ms  that  the 
adopted  child  should  be  heir  of  the  adoptive  parent,  and 
being  silent  as  to  any  right  of  inheritance  by  the  lat- 
ter, impliedly  excluded  any  such  rights.*'"    In  some  states 


Rep.  370,  24  Atl.  948.  And  in 
Riley  v.  Day,  88  Kan.  503,  129 
Pac.  524  it  was  held  that  the 
adopted  child  of  a  deceased  child 
of  decedent  was  "living  issue" 
of  such  deceased  child  within  a 
statute  providing  for  descent  to 
living  issue  of  a  deceased  child. 
86.  Morgan  v.  Reel,  213  Pa. 
81,  62  Atl.  253;  Billings  v.  Head, 
184  Ind.  361,  111  N.  E.  177;  De- 
lano V.  Bruerton,  148  Mass.  619, 
2  L.  R.  A.  698,  20  N.  E.  308; 
Contra,  Wagner  v.  Varner,  50 
Iowa,  532.  As  regards  the  effect 
of  a  second  adoption  by  another 
person  upon  the  child's  right  to 
inherit  from  him  who  first 
adopted  him,  see  editorial 
notes,  31  Harv.  Law  Rev.  488;  16 
Mich.  Law  Rev.  119;  5  Virginia 
Law  Rev.  349,  commenting  on  In 
re  Klapp's  Estate,  107  Mich.  615, 
164  N.  W.  381,  in  which  it  was 
decided   that  the  right  to  inherit 


under  the  first  adoption  was  de- 
stroyed. Contra,  Patterson  v. 
Browning,  146  Ind.  160,  44  N.  E. 
993. 

87.  1  Stimson's  Am.  St.  Law, 
§  6649. 

88.  In  re  Jobson's  Estate,  164 
Cal.  312.  43  L.  R.  A.  (N.  S.) 
1062,  128  Pac.  938. 

89.  White  v.  Dotter,  73  Ark. 
130,  83  S.  W.  1052;  Russell  v. 
Jordan,  58  Colo.  445,  147  Pac. 
693;  In  tre  Namaun,  3  Hawaii. 
484;  Baker  v.  Clowser,  158  Iowa, 
156,  43  L.  R.  A.  (N.  S.)  1056,  138 
N.  W.  837;  Fisher  v. 
Browning,  107  Miss.  729,  Ann. 
Cas.  19170,  466,  66  So.  132; 
Reinders  v.  Koppelman.  68  Mo. 
482,  494;  Edwards  v.  Ycarby.  168 
N.  C.  663.  L.  R.  A.  1!»1.'-)E.  462,  85 
S.  E.  19;  Upson  v.  Noble.  35  Ohio 
St.  655;  nolo  v.  Rol)l)ln.s.  53  Wis. 
514,   10   N.   W.   617. 

90.  Corn    v.    Powell.    Ml    W     N. 


]912 


Keal  Pkopekty. 


[§  498 


it  is  the  law  that  an  adoptive  parent  or  his  kindred  shall 
take  such  proi:)erty  as  passed  to  the  child  from  the 
adoptive  parent,  while  the  blood  relatives  take  property 
which  he  acquired  otherwise. ^^ 

The  right  of  inheritance,  acquired  by  a  child's 
adoption  in  one  state  will,  it  has  been  held,  be  recognized 
in  another  state,  in  so  far  as  this  right  is  not  inconsis- 
tent with  the  laws  and  policy  of  the  latter  state.^^ 

§  498.  Advancements.  An  advancement  is  a  giv- 
ing, by  anticipation,  to  a  child  or  other  relative,  of  a 
part  or  the  whole  of  what  the  donee  would  receive  on 
the  death  of  the  donor  intestate,  with  the  result,  general- 
ly speaking,  that  the  amount  thereof  is  deducted  in 
determining  the  share  of  such  donee  after  the  donee's 
death.  A  substantially  similar  doctrine  was  recognized 
at  common  law,  in  the  case  of  land  given  to  one  of 
several  co-heiresses  to  hold  in  frank  marriage,  she  being 
excluded  from  any  share  in  the  ancestor's  land  unless 
she  brought  the  land  given  her  into  a  common  fund 
for  equal  distribution,  this  being  known  as  ''hotchpot.'"^" 


C.    (Pa.)    297;    Hole   v.   Robbins, 
53  Wis.  514,  10  N.  W.  617. 

91.  See  Swick  v.  Coleman,  2l8 
m.  33,  75  N.  E.  807;  Lanferman 
V.  Van  Zile,  150  Ky.  751,  150  S. 
W.  1008;  Hole  v.  Robbins,  53 
Wis.  514,  10  N.  W.  617; 
Humphries  v.  Davis,  100  Ind.  274. 

In  Humphries  v.  Davis,  100 
Ind.  274,  50  Am.  Rep.  788,  Paul 
V.  Davis,  100  Ind.  422,  overruling 
Barnhizel  v.  Ferrell,  47  Ind.  335, 
it  was  decided  that  property 
which  descended  to  the  adopted 
child  from  the  adoptive  parent 
descended  to  the  latter's  kindred, 
the  question  of  the  descent  of 
property  otherwise  acquired  being 
expressly  left  undecided. 

92.  Woodward's  Appeal,  81 
Conn      152,     70     Atl.     453;     Van 


Matre  v.  Sankey,  148  IH.  536,  23 
L.  R.  A.  665,  39  Am.  St.  Rep.  196. 
36  N.  E.  G28;  Schick  v.  Howe, 
137  Iowa,  249,  14  L.  R.  A.  (N.  S.) 
980,  114  N.  W.  916;  Gray  v. 
Holmes,  57  Kan.  217,  33  L.  R.  A. 
207,  45  Pac.  596;  Ross  v.  Ross, 
129  Mass.  243,  37  Am.  Rep.  321; 
Fisher  v.  Browning,  107  Miss. 
729,  Ann.  Cas.  1917C,  466,  66  So. 
132;  Anderson  v.  French,  77  N. 
H.  509,  93  Atl.  1042,  L.  R.  A.  1916 
A,  660;  Finley  v.  Brown,  122 
Tenn.  316,  25  L.  R.  A.  (N.  S.) 
1285,  123  S.  W.  359.  See  Calhoun 
V.  Bryant,  28  S.  Dak.  266,  133  N. 
W.  266.  Contra,  Brown  v.  Fin- 
ley,  157  Ala.  424,  21  L.  R.  A.  N. 
S.  679,  131  Am.  St.  Rep.  68,  47 
So.    577. 

93.     2  Blackst.  Comm.  190.     As 


§  498]  Intestate   Succession.  1913 

Frank-marriage  was,  however,  practically  obsolete  even 
in  Blackstone  's  time,^^  and  the  modern  law  of  advance- 
ments is  based  exclusively  on  statutes,  which  differ  some- 
what in  different  states."^ 

In  most  states  the  statute  applies  in  terms  to  a  gift 
to  any  descendant  of  the  intestate,  but  a  statute  apply- 
ing in  terms  to  a  gift  to  a  child  only  has  been  construed 
as  extending  to  a  gift  to  another  descendant.'**^ 

The  statutes^f  many  states  provide  that  if  the  per- 
son to  whom  the  advancement  was  made  dies  before  the 
intestate,  his  representives  shall  stand  in  his  place  as 
regards  the  advancement,  that  is,  will  take  subject  to 
the  deduction  thereof  as  the  ancestor  would  have  done.®^ 
But  even  apart  from  an  express  provision  to  that  effect, 
it  seems,  persons  taking  by  right  of  representation  the 
share  of  him  to  whom  the  advancement  was  made,  take 
subject  to  such  deduction.^^  Persons,  on  the  other  hand, 
who  take  in  their  own  right  and  not  by  right  of  represen- 
tation, take  free  from  any  claim  on  account  of  advance- 
ments made  to  their  parent.^^ 

to   local   customs   of  charging  ad-  114  111.  603,  2  N.  E.  603,  4  N.  E. 

vancements    in    connection    with  137,    7    N.    E.    287;    Bramford    v. 

the     distribution     of     personalty,  Crawford,  51  Ga.   20;    Coffman  v. 

see   2.Blackst.    Comm.    517;    Holt  Coffman,    41   W.    Va.    8,   23    S.    E. 

V.  Frederick,  2  P.  Wms.  356.  523. 

94.  2  Blackst.  Comm.  115.  98.     Simpson    v.    Simpson,    114 

95.  1  Stimson's  Am.  St.  Law,  111.  603,  2  N.  E.  603;  Barber  v. 
§§  31G0-31G8;  2  Woerner,  Admin-  Taylor,  9  Dana  (Ky.)  84;  Smith 
istration,    §    559.  v.    Smith,    59   Me.   214;    Williams' 

96.  In  re  Williams.  62  Mo.  Estate,  62  Mo.  App.  339;  Headen 
App.  339;  Johnson  v.  Antriken,  v.  Headen,  42  N.  C.  159;  Quarlcs 
205  Mo.  244,  103  S.  W.  936;  v.  Quarles.  4  Mass.  680;  Parsons 
Storey's  Appeal,  83  Pa.  St.  89;  v.  Parsons,  52  Ohio  St.  470;  Per- 
A  gift  to  a  grandchild  made  son's  Appeal,  74  Pa.  St.  121;  Mr- 
while  the  grandchild's  parent  was  Lure  v.  Steel,  14  Rich.  Eq.  105. 
alive  has  been  regarded  as  not  99.  Brown  v.  Taylor,  62  Ind. 
constituting  an  advancement  to  295;  Skinner  v.  Wynne,  2  Jones 
the  parent.  Stevenson  v.  Martin,  Eq.  41;  Calhoun  v.  ('osgrove.  33 
11   Bush    (Ky.)    485.  La.    Ann.    1001;     Person's    Apeal, 

97.  1    Stimson's   Am.   St.    Law,  74    Pa.    St.    121. 
§  3164.     See  Simpson  v.  Simpson, 


1914  Real  Property.  [§  498 

The  question  whether  a  gift  to  a  possible  heir  or 
distributee  is  to  be  regarded  as  an  advancement  is  a 
question  as  to  the  intention  of  the  donor,  and,  apart  from 
statute,  a  gift  to  an  adult  child,  if  of  substantial  value, 
is  usually  presumed  to  be  an  advancement.^  In  a  num- 
ber of  states  there  are  statutory  provisions  to  the  effect 
that  the  gift,  in  order  to  constitute  an  advancement,  must 
be  acknowledged  in  writing  as  an  advancement  by  the 
donee,  or  must  be  expressed  in  the  g^ft  or  grant  to  be 
made  as  such,  or  must  be  so  charged  by  the  donor  in 
writing.-  In  some  states  it  is  provided  that  maintaining, 
educating,  or  giving  money  to  a  minor  child,  without  any 
view  to  a  portion  or  settlement  for  life,  is  not  an  ad- 
vancement.^ 

The  statute  in  most  states  declares  that,  if  the 
amount  of  the  advancement  exceeds  the  share  to  which 
the  donee  would  be  entitled  on  the  death  of  the  donor  in- 
testate, though  he  need  refund  no  part  of  what  he  has 
received,  he  can  receive  nothing  further  from  the  intes- 
tate's  estate.  In  case  the  advancement  is  not  equal 
to  the  share  to  which  he  is  entitled,  the  donee,  iti  a  num- 
ber of  states,  is  given  so  much  of  the  intestate's  prop- 
erty as  will  make  all  the  shares  equal ;  and  in  some  states 
it  is  provided  that  the  advancement  is  to  be  charged 
against  the  share  to  which  the  donee  is  entitled  in 
either  the  real  or  the  personal  property,  according  as  the 
advancement  may  have  been  the  one  or  the  other,  and 
that,  if  the  advancement  should  exceed  the  amount  to 
which  he  may  be  entitled  out  of  either  class  of  ]3roperty, 
his  share  in  the  other  class  shall  be  proportionally  re- 
duced. In  some  states  it  is  provided  in  terms  that  the 
donee  must,  in  order  to  obtain  his  proper  share  in  the 

1.     2   Woerner,   Administration,  2.     1    Stimson   Am.    St.   Law,    § 

§    555;    Boyer    v.    Boyer,    62    Ind.  3162. 

App.  73,   111  N.  E.  952;    Calhoun  3.     1   Stimson,   Am.   St.  Law,  § 

V.    Taylor,    178    Iowa,    56,    159    N.  3161.    This  appears  to  be  so  apart 

W.  600;  Lynch  v.  Culver,  260  Mo.  from   such    an   express   provision. 

495,    168    S.   W.    1138.  2  Woerner,  Administration,  §  555. 


§  499]  Intestate   Succession.  1915 

intestate's  proi)erty,  bring  the  amount  of  tlie  advance- 
ment into  ''hotch  pot,"  that  is,  he  must  eontiibute  to 
the  common  fund  the  amount  of  his  advancement,  and 
shall  then  receive  therefrom  the  same  amount  as  if  the 
advancement  had  not  been  made.^ 

The  statutes  in  regard  to  advancements  have  no  ap- 
plication, as  a  general  rule,  in  the  case  of  a  partial  in- 
testacy, since  it  is  presumed  that  the  will  would  have 
mentioned  any  gifts  which  it  was  intended  should  be 
regarded   as   advancements.^ 

§  499.  Disinheritance.  It  is  generally  recognized 
that  one  who  would  otherwise  take,  as  heir  or  distributee, 
the  w^liole  or  a  part  of  decedent's  property,  cannot  be 
deprived  of  his  right  in  this  regard  by  a  mere  expres- 
sion of  an  intention  to  that  effect  in  decedent's  will, 
without  a  testamentary  disposition  of  the  property  in 
favor  of  another  or  others.  For  instance,  a  statement 
in  testator's  will  that  his  eldest  son  is  not  to  share 
in  his  estate  will  not  preclude  the  son  from  so  sharing, 
unless  all  tlie  estate  is  etfectuallv  disposed  of  bv  tlie 
will.« 

Even  though  all  of  decedent's  property  is  otherwise 
disposed  of  by  the  will,  this  is  not  necessarily  effective, 
in  many  states,  to  deprive  a  child  of  decedent,  or  tlie 
issue  of  a  deceased  child,  of  a  right  to  share  thereiu,  it 

4.  1  Stirason's  Am.  St.  Law,  §  Anderson,  69  N.  H.  561,  44  All. 
:>]63.  103;    Nagle    v.    Conard,    79    N.    J. 

5.  2  Woerner,  Administration,  Eq.  124,  81  Ail.  841,  80  N.  J.  Eq. 
§  553;  1  Dembitz,  Land  Titles,  §  253,  86  Atl.  1103;  Gallagher  v. 
248.  Crooks,   132   N.    Y.    :]?>S.    30   N.    K. 

6.  Denn  v.  Gaskin,  Cowp.  657;  746;  In  re  Trimble's  Will,  199  N. 
Pickering  v.  Stamford,  3  Ves.  Jr.  Y.  454,  92  N.  E.  1073;  Atkins 
492;  Campbell-Kan nanakoa  v.  v.  Kron,  2  Ired.  Eq.  (N.  C.)  58; 
Campbell,  152  Cal.  201,  92  Pac.  Vaughn  v.  Lanford,  81  S.  C.  282. 
184;  Lane  v.  Patterson,  138  Ga.  62  S.  E.  316;  Bois.seau  v.  Al- 
710,  76  S.  B.  47  (semble);  Tea  dridges,  5  Leigh  (Tenn.)  222; 
V.  Millen,  257  111.  624,  101  N.  E.  Coffman  v.  Coffman,  85  Va.  459, 
209;    Doe    v.    Lanius,    3    Ind.    441.  8    S.   E.   072. 

56  Am.  Dec.  518  &  note;   Wells  v. 


1916  Real  Peoperty.  [§  499 

being  frequently  provided  by  statute  that  a  child,  or  the 
issue  of  a  deceased  child,  not  provided  for  in  the  will, 
shall,  subject  to  varying  limitations,  take  the  share 
which  he  would  have  received  in  case  decedent  had  died 
intestate,  and  in  many  states  there  is  such  a  provision, 
confined  in  its  operation,  however,  to  the  case  of  a  child 
who  was  born  after  the  execution  of  the  wdllJ 

7.     See     1     Stimson's    Am.     St.      Administration,  §  55. 
Law,    §§    2842,    2843,    1    Woerner, 


CHAPTEE  XXIII 

ADVERSE  POSSESSION  OF  LAND. 

§  500.  General  considerations. 

501.  Actual  and  visible  possession. 

502.  Exclusiveness  of  possession.  . 

503.  Hostility  of  possession. 

504.  Necessity  of  claim  of  title. 

505.  Mistake  in  locating  boundary. 

506.  Necessity  of  right  of  action. 

507.  Interruption  of  running  of  statute. 

508.  Tacking. 

509.  Personal  disabilities. 

510.  Exception  in  faTor  of  the  sovereign. 

511.  Effect  as  vesting  and  divesting  title. 

512.  Extent  of  possession. 

513.  Particular  relations. 

(a)  Landlord   and    tenant. 

(b)  Trustee  and   cestui  que  trust. 

(c)  Licensor  and  licensee. 

(d)  Principal  and  agent. 

(e)  Grantor  and  grantee. 

(f)  Vendor  and  vendee. 

(g)  Life  tenant  and  remainderman, 
(h)  Cotenants. 

(i)  Mortgagor  and  mortgagee. 

(j)  Mortgagor  and  foreclosure  purchaser. 

(k)  Surviving  spouse  and  heirs. 

(1)  Parent  and  child. 

(m)  Husband  and  wife. 

§  500.  General  considerations.  There  were,  even 
in  early  times,  numerous  statutes  adopted  in  England 
limiting  the  time  within  which  an  action  could  be  brouglit 
on  account  of  a  disseisin  of  land,  but  these  differed  from 
the  statutes  of  the  present  day  in  that,  instead  of  naming 
a  certain  number  of  years  before  the  institution  of  the 
action  beyond  which  no  disseisin  could  be  alleged,  they 
named  a  certain  j^ear  back  of  which  the  pleader  could 

Z  R.  P.-46  (191') 


1918  Real  Property.  [§  500 

not  go.^  The  last  statute  whicli  adopted  this  method 
of  tixing  the  period  of  limitation  was  St.  Westminster  I. 
e.  o9,-  which  forbade  the  seisin  of  an  ancestor  to  be 
alleged  in  a  writ  of  right  prior  to  the  beginning  of  the 
reign  of  Richard  I.  (A.  D.  1189),  and  for  other  writs 
fixed  the  year  1217.  Thus,  under  this  statute,  at  the 
time  of  its  passage,  the  period  of  limitation  for  some 
writs  was  fifty-eight  years,  and  this  period  was  lengthen- 
ed, as  time  went  on  without  any  change  in  the  law,  so 
that  it  exceeded  three  hundred  years  when,  by  3^2  Hen. 
VIII.  c.  2,^  a  change  was  made,  and  the  modern  method 
was  adopted  of  tixing  a  certain  number  of  years  Avithin 
which  the  action  must  be  brought.  This  last  statute,  how- 
ever, applied  only  to  the  old  real  actions,  and,  the  action 
of  ejectment  having  to  a  great  extent  taken  their  place, 
St.  21  Jac.  I.  c.  IG,"*  was  passed,  which  provided  that 
no  person  should  thereafter  make  any  entry  into  any 
lands,  tenements,  or  hereditaments  but  within  twenty 
years  next  after  his  or  their  right  or  title  shall  have 
accrued.  This  statute,  while  not  in  terms  applying  to  the 
action  of  ejectment,  did  so  in  effect  by  barring  the  right 
of  entry  on  which  the  action  depended. 

In  this  country  the  statutes  of  the  different  states, 
as  regards  the  limitation  of  actions  to  recover  land, 
exhibit  very  considerable  diversity,  but  the  courts,  in 
appMng  them,  have  recognized  certain  general  princi- 
ples as  governing  the  subject,  with  but  little  regard,  for 
the  most  part,  to  the  language  of  the  particular  statute. 

The  period  of  twenty  years,  named  in  tlie  statute  of 
James,  has  been  adopted  in  the  legislation  of  a  number 

1.     Thus    the    earliest    date    at  Pollock    &    Maitland,    Hist.    Eng. 
which   the   seisin   of   an   ancestor  Law,   51,   81,   141. 
could    be    alleged    in    a    writ    of  2.     3   Edw.   I.    (A.   D.  1275). 
right    was    the   beginning   of    the  3.     A.   D.   1540.     The   disadvan- 
reign  of  Henry  1.  (A.  D.  1100)  un-  tages  of  the  long  period  of  limita- 
til     this     was     changed     by     the  tion  was,  however,  to  a  great  ex- 
Statute   of   Merton   to  the   begin-  tent    avoided    by    the    system    of 
ning  of   the   reign   of   Henry   II.  levying    fines.       See     Lightwood, 
(A.   D.   1154).   Other   dates    were  Possession    of   Land.    15C. 
fixed     for    other     writs.       See    2  4.    A.  D.  1623. 


^  ^^)]  Adverse    Posslssjox.  1919 

of  the  states,  while  in  a  few  the  lapse  of  a  greater 
period  is  required  to  har  the  right  of  action,  and  in 
some  a  much  less  period.  In  a  number  of  the  states 
there  are  statutory  provisions  for  what  are  known  as 
"short  limitations,"  in  effect  considerably  r  '  '  _  the 
ordinary-  period  in  cases  when  the  adverse  p  :i  is 

by  one  claiming  under  "color  of  title,"  that  is,  by  one 
who  has,  in  taking  possession,  acted  on  the  strength  of 
a  conveyance  or  judicial  decree  purporting  to  vest  the 
title  in  him,  but  which,  for  some  reason,  fails  to  do  so. 
In  some  states,  such  a  provision  exists  in  favor  of  one 
occupying  under  a  particular  class  of  conveyance  or  de- 
cree, as  when  it  is  provided  that  a  junior  patent  from  the 
state  under  which  one  occupies  cannot  be  attacked  after 
a  certain  number  of  years,  and  such  a  provision  is  fre- 
quently found  in  favor  of  a  purchaser  at  certain  classes 
of  judicial  sales,  or  at  tax  sales.  The  possession  under 
such  a  •'short  limitation"  act  is  usually  required  to  be 
accompanied  by  the  payment  of  taxes  on  the  land  by  the 
person  in  possession.^ 

The  doctrine  of  adverse  possession,  as  now  estab- 
lished, may  be  expected  to  diminish  in  importance  with 
the  further  extension  and  utilization  of  the  system  of 
registration  of  titles  ordinarily  referred  to  as  the 
Torrens  System,^'  by  reason  of  the  fact  that  the  legisla- 
tion establishing  this  system  quite  frequently  provides 
that  title  shall  not  be  acquired  by  adverse  possession  as 
against  the  registered  owner  of  the  land.^ 

5.  The  short  limitation  acts  of  registered  land."  Ii  has  been  said, 
the  several  states  are  ■well  sam-  in  this  connection  that  "if  the 
marized  in  2  Dembitz.  Land 
Titles.    §    186. 

5a.     Post.  I  580. 

5b.  But  the  English  Commis- 
sioners on  Land  Transfer  recom- 
mend a  change  in  this  regard  In 
the  English  act,  to  the  effect  that 
"the  statutes  of  limitation  shall  article  by  James  Edward  Hoge. 
operate  in  the  same  manner  with  Esq..  28  Yale  Law  Joum.  at  pp. 
regard    to    registered    as    to    un-      54,    58,    wherein    is    faTOied    the 


policy    of   the    V^:  ■ 

acts    is 

(as  has  always 

1  so'Jnd, 

what   adec 

-a    there 

be    for    r€ 

.    to    ni»- 

registered      lanu. 

.Article      by 

Arthur     UnderhJlL 

Elsq.     in     27 

Law   Quart-   Rev.  at 

p.    178.     See 

1920  Eeal  Pboperty.  [§  500 
Theory  of  the  legislation.     The  desirability  of 


fixing,  by  law,  a  definite  period  within  which  claims  to 
land  must  be  asserted  has  been  generally  recognized, 
among  the  practical  considerations  in  favor  of  such  a 
policy  being  the  prevention  of  the  making  of  illegal 
claims  after  the  evidence  necessary  to  defeat  them 
has  been  lost,  and  the  interest  which  the  community 
as  a  whole  has  in  the  securit}^  of  title.  The  moral 
justification  of  the  policy  lies  in  the  consideration 
that  one  who  has  reason  to  know  that  land  belonging 
to  him  is  in  the  possession  of  another,  and  neglects,  for 
a  considerable  period  of  time,  to  assert  his  right  thereto, 
may  properly  be  penalized  by  his  preclusion  from  there- 
after asserting  such  right.  It  is,  apparently,  by  reason 
of  the  demerit  of  the  true  owner,  rather  than  any  sup- 
posed merit  in  the  person  who  has  acquired  wrongful 
possession  of  the  land,  that  this  possession,  if  continued 
for  the  statutory  period,  operates  to  debar  the  former 
owner  of  all  right  to  recover  the  land.® 

Presumption  of  conveyance  distinguished.    The 


doctrine,  occasionally  asserted,  that  the  long  continued 
possession  of  land  by  one  claiming  as  owner  gives  rise 
to  the  presumption  of  a  valid  conveyance  to  him  or  to  the 
person  under  whom  he  claims,  though  ordinarily  similar 
in  its  practical  results  to  the  statutes  of  limitation,  is 
entirely  independent  thereof.  It  involves  a  presumption 
of  the  rightfulness  of  one's  possession,  while  the  stat- 

applicatiou  of  the  limitation  stat-  Haralson,  J.,  in  Lecroix  v.  Malone, 

utes  to  land  registered  under  the  157  Ala.   434,   47    So.   725;    Depue, 

system,   the    limitation   period    to  J.,  in  Foulke  v.  Bond,  41  N.  J.  L. 

begin  to  run,  however,  only  after  527.    A  different  view  is  indicated 

registration.  in  Mclver  v.  Ragan,  2  Wheat,  25, 

6.     See      Ames,      Disseisin      of  approved    in    Craven    v.    Craven, 

Chattels,    3   Harv.    Law   Rev.   318,  181   Ind.   553,   103   N.   E.   333,   105 

Lectures    on    Legal    History    197;  N.  E.   41.     See  the   discussion   of 

Editorial    note,    10    Columbia    L.  the     policy     of    the     statutes     by 

Rev.  761;    Pollock  &  Wright,  Pos-  Professor  Henry  W.  Ballantine,  32 

session,     96;     Gibson,     C.    J.,     in  Harv.  Law  Rev.  135, 
Sailor  v.  Hertzogg,  2  Pa.  St.  182; 


§  500]  Adverse    Possessiox.  1921 

utes  of  limitation  are  by  their  terms  applicable  only 
when  tlie  possession  is,  apart  from  such  statutes,  wrong- 
ful. 

As  regards  the  doctrine  referred  to,  of  the  pre- 
sumption of  a  conveyance  based  on  long  continued 
possession,  it  has  been  said,  by  the  United  States 
Supreme  Court,  that  in  order  to  presume  a  conveyance  it 
is  not  necessary  for  the  jury  to  believe  that  a  conveyance 
was  in  fact  executed,  but  it  is  sufficient  if  the  evidence 
leads  to  the  conclusion  that  the  conveyance  might  hav^e 
been  executed,  and  that  its  existence  would  be  a  solution 
of  the  difficulties  arising  from  its  non  execution.'  Such 
a  view  has  also  been  indicated  by  some  of  the  state 
courts,^  while  others  merely  recognize  that  long  con- 
tinued possession  is  a  fact,  to  be  considered  along  with 
other  facts,  tending  to  show  that  a  convej^ance  was  ex- 
ecuted, without  being  in  any  way  conclusive  in  that 
regard.^ 

The  cases  do  not  ordinarily  specify  the  length  of 
the  period  of  possession  w^hich  will  be  sufficient  to  justi- 
fy the  presumption  of  a  grant.  It  would  appear,  how- 
ever, that  in  so  far  as  the  presumption  is  regarded  as  a 
rule  of  law^,  calling  for  the  finding  of  a  grant  without 

7.  Field,  J.,  in  Fletcher  v.  Ful-  Valentine  v.  Piper,  22  Pick, 
ler,  120  U.  S.  534,  30  L.  Ed.  759.  (Mass.)     85,    33    Am.    Dec.    715; 

8.  Kidd  V.  Browne, — Ala. — ,  70  .lenkins  v.  McMichael,  21  Pa. 
So.  65;  Reed  v.  Money,  115  Ark.  Super.  Ct.  161;  Taylor  v.  Wat- 
1.  170  S.  W.  478;  Casey's  Lessee  kins,  26  Tex.  688;  Herndon  v. 
V.  Inloes,  1  Gill  (Md.)  430,  503,  Vick,  89  Tex.  469,  35  S.  W.  141; 
39  Am.  Dec.  658;  Melvin  v.  Wad-  Townsend  v.  Downer's  Adm'r,  32 
dell,   75   N.  C.   357;    Davis  v.   Me-  Vt.  183. 

Arthur,  78  N.  C.  357;  Williams  v.  Regarded  as  a  mere  matter  of 

Donnell,    2     Head     (Tenn.)     695;i  inference,    a    grant    may    be    in- 

Dunn  V.  Eaton,   92  Tenn.   743,  23  ferred    or    presumed    from    other 

S.  W.   163;    Matthews   v.    Burton,  facts,  even  though  the  person  aa- 

17   Gratt.    (Va.)    312.  serting  the  grant  had  never  been 

9.  Nelson  v.  Weekly,  1!)5  Ala.  in  possession.  Le  Blanc  v.  Jack- 
1,  70  So.  C61;  Carter  v.  Good-  son.— Tex  Civ.  App.— ,  161  S.  W. 
son,  114  Ark.  359,  169  S.  W.  806;  CO. 

Sumner    v.    Child,    2    Conn.    C07; 


]922  Eeal  Peoperty.  [§  500 

regard  to  the  actual  belief  of  the  jury  therein/'^  it  must 
be  supported  by  a  possession  of  at  least  the  period  of 
the  statute  of  limitations,  and  ordinarily  its  application 
has  been  based  on  a  possession  for  a  longer  period.^^ 
When  the  presumption,  so  called,  involves  merely  an 
inference  of  the  making  of  a  conveyance  from  the  fact 
of  possession,  taken  in  connection  with  other  circum- 
stances, it  seems  that  a  period  of  possession  less  than  the 
limitation  period  might  properly  be  considered  in  aid 
of  the  inference. ^- 

A  conveyance  from  the  state  may  be  presumed,^^ 
although  the  statute  of  limitations  will  not  ordinarily 
run  against  the  state. ^^  A  conveyance  will  not  be  pre- 
sumed, it  seems,  on  the  part  of  one  who  was  incapaci- 
tated to  make  a  conveyance. ^^ 

Character  of  possession.     Ordinarily  at  least, 

the  statutes  of  limitation  with  reference  to  land  in  terms 
impose   no   requirement   upon   the   person  in   wrongful 
possession  as  to  the  character  of  his  possession  neces- 

10.  Ante,  this  section,  notes  65  So.  170;  Tracy  v.  Norwich  etc. 
7,  8.  R.    Co.,    39    Conn.    382;    Jarboe   v. 

11.  Waggener  v.  Waggener,  3  McAtee,  7  B.  Mon.  (Ky.)  279; 
T.  B.  Mon.  (Ky.)  542;  Hunt  v.  State  v.  Dickinson,  129  Mich.  221, 
Hunt,  3  Mete.  (Mass.)  175,  88  N.  W.  621;  Caruth  v.  Gillispie, 
57  Am.  Dec.  130;  Kellum  v.  Corr,  109  Miss.  679,  68  So.  927;  Jackson 
209  N.  Y.  486,  103  N.  E.  701;  v.  McCall,  10  Johns.  (N.  Y.)  377; 
Stockdale  v.  Young,  3  Strob.  L.  Reed  v.  Earnhart,  10  Ired.  (N. 
S.  C.)  501;  Coleman  v.  Coleman,  C.)  516;  Davis  v.  McArthur,  78 
71  S.  C.  521,  51  S.  E.  250;  Scales  N.  C.  357.  See  Editorial  note,  29 
V.  Cockrill,  3  Head    (Tenn.)    432;  Harv.  Law  Rev.  88. 

Cannon     v.     Phillips,     2     Sneed  14.     Post,   §   510. 

(Tenn.)    211.  15.     Hunt     v.     Hunt,     3     Mete. 

12.  Barclay  v.  Howell,  6  Pet.  (Mass.)  175,  37  Am.  Dec.  130; 
(U.  S.)  498,  8  L.  Ed.  477;  RicarJ  Spears  v.  Oakes,  4  Rich.  L.  (S. 
V.  Williams,  7  Wheat,  59,  5  L.  C.)  347;  Habersham  v.  Hopkins, 
Ed.  398;  Courcier  v.  Graham,  1  4  Strob.  L.  (S.  C.)  238,  53  Am. 
Ohio,  330  Stockdale  v.  Young,  3  Dec.  676  (deed  in  breach  of 
Strob.  L.  (S.  C.)  501.  trust);    Garrett    v.    Weinberg,    48 

13.  United  States  v.  Chaves,  S.  C.  28;  Martin  v.  State,  10 
159  U.  S.  452,  40  L.  Ed.  215;  Humph.  (Tenn.)  157;  Drewery  v. 
Carter    v.    Walker,    186    Ala.    140,  Nelms,  132   Tenn.  254,   177   S.  W. 


§  500]  Adverse    Possession".  1923 

sary  to  make  the  bar  effective,  and  it  is  merely  by  reason 
of  the  endeavor  of  the  courts  adequately  to  protect  the 
interests  of  the  rightful  owner  that  certain  requirements 
in  this  regard  have  become  established.  The  most  im- 
portant of  these  requirements  is  that  to  the  effect  that 
the  possession  must  be  hostile  or  ''adverse"  to  the  true 
owner,  and  so  generally  has  this  requirement  been  recog- 
nized, and  so  important  has  it  been  regarded,  that  the 
expression  "adverse  possession"  has  come  to  be  general- 
ly applied  to  describe  that  branch  of  the  law  which  has 
to  do  with  the  construction  and  application  of  the  stat- 
utes of  limitation  in  reference  to  land.  The  emphasis 
thus  laid  upon  the  character  of  the  wrongful  possession 
has  the  unfortunate  effect  of  obscuring  the  theory  on 
which,  as  above  stated,  these  statutes  appear  properly 
to  operate,  that  is,  that,  like  other  statutes  of  limitation, 
they  bar  the  remedy  of  the  person  rightfully  entitled 
not  by  reason  of  any  merit  in  the  wrongdoer,  but  by 
reason  of  the  demerit  of  the  person  who,  having  a 
remedy,  fails  to  exercise  it  within  the  time  named  in 
the  statute. 

It  is  occasionally  said  that  the  adverse  possession 
which  is  sufficient  to  cause  the  statute  of  limitations  to 
run  is  synonymous  with  disseisin,  as  recognized  at  com- 
mon law,  but  this  is  not  entirely  correct.  Disseisin  is, 
properly,  "where  a  man  enters  into  any  lands  or  tene- 
ments where  his  entry  is  not  congeable  (i.  e.  ])ermissi- 
ble),  and  ousted  him  which  has  the  freehold."'"  Dis- 
seisin then,  as  the  expression  was  used  in  the  old  l)()oks, 
means  a  wrongful  dispossession  of  one  who  has  a  free 
hold  estate  in  the  land.  And  it  was  carefully  distinguish- 
ed from  a  mere  trespass,  which  did  not  involve  any 
dispossession  of  the  freeholder.*"^  Since  then  disseisin, 
generally  speaking,  meant  tlie  wrongful  dispo.^sessioii 
of  one  person  by  another,  and  the  statute  of  limitations 

946;      Ferguson     v.     Prince,     136  17.     Co.    l.itt.    181a,    2    Preston 

Tenn.  543,   190  S.  W.   548.  Abstracts,  287. 

16.     Litt.  §  279. 


1924  Real  Peopeety.  [§501 

I'lms  by  reason  of  such  wrongful  dispossession,' it  would 
ordinaril}^  be  correct  to  say  that  the  statute  runs  in 
favor  of  a  disseisor  as  against  the  disseisee.  But  it  also 
runs  under  circumstances  which  did  not  involve  a  dis- 
seisin at  common  law,  as  for  instance,  when  a  tenant 
pur  auter  vie  holds  over  after  the  death  of  cestui  que 
vie,^^  or  a  tenant  for  years  disclaims  the  title  of  his 
landlord.^^  On  the  other  hand  the  statute  may  not  run 
under  circumstances  which  at  common  law  involved  a 
disseisin.  "If  a  man  entereth  into  land  of  his  own 
wrong,  and  take  the  profits,  his  words  to  hold  it  at 
the  will  of  the  owner  cannot  qualify  his  wrong,  but  he  is 
a  disseisor. "-°  But  the  statute  of  limitations  would 
not  run  in  favor  of  one  so  entering  and  claiming  to  be 
tenant  at  will  of  the  rightful  owner,  for  the  reason  that 
his  possession  lacks  the  element  of  adverseness  or 
hostility,  which  is  necessary  to  the  running  of  the 
statute.  Furthermore  the  expression  "disseisin,"  like 
* '  dispossession, ' '  has  reference  to  a  change  of  occupancy, 
while  the  expression  "adverse  possession  "  involves 
the  idea  of  a  continuous  occupancy  without  change. 

§  501.  Actual  and  visible  possession.  In  order  that 
the  statute  of  limitations  shall  run  against  the  right  to 
recover  land,  it  is  necessary,  not  only  that  the  person 
rightfully  entitled  be  out  of  the  actual  possession,  but 
also  that  there  be  an  entry  upon  the  land  by  another. 
The  statute  does  not  run  as  against  the  true  owner  in 
favor  of  one  who,  while  having  what  purports  to  be  a 
conveyance  of  the  land,  or  other  paper  title,  has  never 
entered  on  the  land.^^  Nor  is  an  entry  upon  the  land 
sutKcient  in  itself,  but  it  must  be  followed  by  such  acts 

IS.     Post,  §  513(g).  72    Ala.    151;    Christy    v.    Spring 

19.  Post,  §   513(a).  VaUey  Water  Works,   97  Cal.   21, 

20.  Co.  Litt.  271a.  31  Pac.   1110;    Walker  v.  Hughes, 

21.  White  V.  Burnley,  20  How.  90  Ga.  52,  15  S.  E.  912;  Thayer  v. 
(U.  S.)  235,  15  L.  Ed.  886;  Ward  McClellan,  23  Me.  417;  Word  v. 
V.   Cochran,   150   U.   S.   597,   37  L.  Box,  66  Tex.  596,  3  S.  W.  93. 

Ed.  1195;   Lipscomb  v.  McClellan, 


§  501]  Adverse   Possession.  1925 

of  dominion  over  the  land  as  will  constitute  what  the 
law  regards  as  actual  possession  of  the  land.--  This  re- 
quirement of  actual  possession  by  another  appears  to 
find  sufficient  justification  in  the  consideration  that  un- 
less some  other  person  is  in  possession  there  is  no  one 
against  whom  the  rightful  owner  can  enforce  his  riglit 
of  action  or  entrj-,  and  so  no  one  in  favor  of  whom  the 
statute  can  operate,  and  also  in  the  consideration  that 
if  no  person  is  in  possession  there  is  nothing  to  sug- 
gest to  the  rightful  owner  the  desirability  or  propriety  of 
asserting  his  rishts  in  the  land. 

What  is  sufficient  to  constitute  actual  possession  of 
the  land  depends  upon  the  character  of  the  land  and  all 
the  circumstances  of  the  case.^^  It  involves,  as  a  general 
rule,  the  doing  of  acts  of  dominion  on  the  land,  sufficient- 
ly pronounced  and  continuous  in  character  to  charge  the 
owner  with  notice  that  an  adverse  claim  to  the  land  is 
asserted.  Continued  residence  on  the  land  is  no  doubt 
sufficient  to  show  actual  possession  f^  and  cultivation  or 
otherwise  improving  the  land  has  been  regarded  as  suffi- 
cient in  particular  cases,^^  and  the  erection  and  main- 
tenance of  a  fence  around  the  land  may,  in  connection 

22.  The  payment  of  taxes  is  road  &  Coal  Co.  v.  Quick,  68  Pa. 
not  a  substitute  for  possession.  St.  189;  Alabama  State  Land  Co. 
Franklin  v.  Snuw,  195  Ala.  569,  v.  Kyle,  99  Ala.  474-,  13  So.  43. 
71  So.  93;  Mitchell  v.  Chicago  B.  Under  some  of  the  "short  limi- 
&  Q.  R.  Co.,  265  III.  300,  106  N.  tation"  statutes,  actual  residence 
E.  833;  Frazier  v.  Ison,  161  Ky.  is  necessary.  Stumpf  v.  Oster- 
379,  170  S.  W.  977;  Millett  v.  hage,  94  111.  115;  Chiles  v.  Jones. 
Mullen,    95   Me.    400,   49    Atl.    871,  4    Dana    (Ky.)    479. 

Whitman  v.  Shaw,  166  Mas..  451,  25.     Butler  v.   Drake,   62   Minn. 

44  N.  E.  333;   Young  v.  Grieb,  i>5  229,   64   N.  W.    559;    Susquehanna 

Minn.  396,  104  N.  W.  131;  Leaven-  &  W.  V.   Railroad   &   Coal   Co.    v. 

worth    V.    Reeves,    106    Miss.    722,  Quick.    68    Pa.    189;     Congdon    v. 

64    So.    660;    Hays    v.    Pumphrey,  Morgan,    14    S.    C.    587;    Crapo    v. 

226  Mo.   119,  125   S.  W.  1109.  Cameron,  61  Iowa.  477.  16  N.  W. 

23.  The  matter  is  well  discuss-  523;  Finn  v.  Wisconsin  River 
ed  in  2  Dembitz  Land  Titles,  §  Land  Co.,  72  Wis.  546.  40  N.  W. 
181.  209;    Johns  v.  McKibben,   156   111. 

24.  Susquehanna  &  W.  V.  Rail-  71,  40  N.  E.  449. 


1926 


Real  Peopeety. 


[§  501 


with  other  circumstances,  be  sufficient.^*^  On  the  other 
hand,  a  merely  occasional  and  sporadic  use  of  the  land, 
an  occasional  entry  to  cut  timber  or  grass,  or  to  ap- 
propriate other  products  or  profits  of  the  land,  does  not 
usually  constitute  actual  possession.^'^  The  question 
whether,  in  any  particular  case,  there  was  an  actual  pos- 
session of  the  land,  is  ordinarily  one  of  fact  for  the 
jury  under  the  instructions  of  the  court.^^ 

In  a  number  of  states  ther£  are  statutory  provisions 
as  to  what  shall  constitute  possession  for  this  purpose, 


26.  Perry  v.  Lawson,  112  Ala. 
480,  20  So.  611;  Carpenter  v. 
Smith,  76  Ark.  447,  88  S.  W. 
976;  Brumagim  v.  Bradshaw,  39 
Cal.  24,  50;  Ritzman  v.  Aspel- 
meier,  89  Iowa,  179,  56  N.  W. 
421;  Lamereaux  v.  Creveling,  103 
Mich.  501,  61  N.  W.  783;  Barker 
V.  Publisher's  Paper  Co., — N.  H. 
— ,  97  Atl.  749;  Moore  v.  Curtis, 
169  N.  C.  74,  85  S.  E.  132;  Am- 
brose V.  Huntington,  34  Ore.  484, 
56  Pac.  513;  Illinois  Steel  Co.  v. 
Bilot,  109  Wis.  418,  84  N.  W. 
855,  85  N.  W.  402,  83  Am.  St. 
Rep.   905. 

27.  Chastang  v.  Chastang,  141 
Ala.  451,  109  Am.  St.  Rep.  45,  37 
So.  799;  Denham  v.  Holeman,  26 
Ga.  182,  71  Am.  Dec.  198;  White 
V.  Harris,  206  111.  584,  69  N.  E. 
519;  Smith  v.  Chapman,  160  Ky. 
400,  169  S.  W.  834;  Lacroix  v. 
Crane,  133  La.  227,  62  So.  657; 
Malone  v.  Long,  128  Md.  377,  97 
Atl.  643;  Parker  v.  Parker,  1 
Allen  (Mass.)  245;  Leavenworth 
V.  Reeves,  106  Miss.  722,  64  So. 
666;  Herbst  v.  Merrifield,  133  Mo. 
267,  34  S.  W.  571;  Cornelius  v. 
Giberson,  25  N.  J.  L.  1;  Wheeler 
V.  Spinola,  54  N.  Y.  377;  Camp- 
bell V.  Miller,  165  N.  C.  51,  80  S. 


E.  974;  Wheeler  v.  Taylor,  32 
Ore.  421,  67  Am.  St.  Rep.  540,  52 
Pac.  183;  Wheeler  v.  Winn,  53 
Pa.  122,  91  Am.  Dec.  186;  Stevens 
V.  Pendregon,  106  Tex.  576,  173 
S.  W.  210;  Wilson  v.  Blake,  53 
Vt.  305. 1  Compare  McLellan  v. 
McFadden,  114  Me.  242,  95  Atl. 
1025;  D.  W.  Alderman  &  Sons 
Co.  V.  McKnight,  95  S.  C.  245, 
78  S.  E.  982;  Chase  v.  Eddy,  88 
Vt.  235,  92  Atl.  99. 

So  it  has  been  decided  that  the 
mere  pasturing  of  cattle  '  on 
land  did  not,  in  view  of  the 
character  of  the  land  and  the 
custom  of  the  community,  involve 
an  actual  possession;  Bergere  v. 
United  States,  168  U.  S.  66,  42 
L.  Ed.  383;  McCloskey  v.  Hayden, 
169  111.  297,  48  N.  E.  432;  Fuentes 
V.  McDonald,  85  Tex.  132,  20  S. 
W.  43;  Chilton  v.  White,  72  W. 
Va.  545,   78   S.  E.   1048. 

28.  Anderson  v.  Bock,  15  How. 
(U.  S.)  323,  14  L.  Ed.  714;  Trues- 
dale  V.  Ford,  37  111.  210;  Arm- 
strong V.  Risteau,  5  Md.  256,  59 
Am.  Dec.  115;  Pendill  v.  Mar- 
quette County  Agricultural  Soc, 
95  111.  210;  Martin  v.  Rector,  30 
Hun  (N.  Y.)  138;  O'Hara  v. 
Richardson,    46   Pa.    St.   385. 


§  501] 


Adverse    Possessiox. 


]92; 


a  usual  one  being  that  land  shall  be  regarded  as  possess- 
ed by  one  when  it  has  been  protected  by  him  by  means 
of  a  substantial  enclosure,  or  when  it  has  been  "usually 
cultivated  and  improved,"-^  this  latter  phrase  being 
construed  as  equivalent  to  cultivated  and  improved  as 
land  of  a  similar  character  is  usually  cultivated  and 
improved.^*' 

The  possession  need  not  be  by  the  adverse  claimant 
himself,  he  being  regarded  as  in  actual  possession  for 
this  purpose  if  one  holding  under  him  as  his  tenant  or 
agent  is  in  possession.^^ 

The  possession  must,  it  is  said,  be  ''visible"  and 
"notorious,"  so  that  the  owner  may  have  an  opportunity 
to  learn  of  the  adverse  claim,  and  to  protect  his  rights.'^- 
Actual  knowledge  of  the  possession  on  the  part  of  the 
true  owner  is  not,  however,  necessary,  it  being  suffi- 
cient that  he  could  have  learned  thereof  bv  the  exercise 


29.  Wood,  Limitations  (4th 
Ed.)   §  255. 

30.  See  Mattes  v.  Hall,— (Cal.) 
—132  Pac.  295;  Trask  v.  Success 
Mining  Co.,  28  Idaho,  483,  155 
Pac.  288;  Ramapo  Mfg.  Co.  v. 
Mapes,  216  N.  Y.  362,  110  N.  E. 
772. 

31.  Holtzman  v.  Douglas,  168 
U.  S.  278;  Elliott  v.  Dycke,  78 
Ala.  1;  Beckett  v.  Petaluma,  171 
Cal.  309,  153  Pac.  20;  Kepley  v. 
Scully,  185  111.  52,  57  N.  E.  187; 
Atty.  Gen.  v.  Ellis,  198  Mass.  91, 
15  L.  R.  A.  (N.  S.)  1120,  84  N. 
E.  430;  Ramsey  v.  Glenny,  45 
Minn.  401,  22  Am.  St.  Rep.  736, 
48  N.  W.  322;  Lindenmayer  v. 
Gunst,  70  Miss.  693,  35  Am.  St. 
Rep.  685,  13  So.  252;  Alexander 
V.  Gibbon,  118  N.  C.  796,  54  Am. 
St.  Rep.  757,  24  S.  E.  748;  Strom 
V.  Hancock  Land  Co.,  70  Ore. 
101,  140  Pac.  458;  Whitehead  v. 
Foley,  28  Tex.  1;   Chamberlain  v. 


Pybas,   81   Tex.   511,   17   S.  W.  50. 

Such  possession  by  one  person 
by  the  hands  of  another  has  been 
conveniently  designated  as  "medi- 
ate posession"  as  distinct  from 
the  "immediate  possession'  of  the 
person  who  is  actually  in  the 
possession  of  the  land.  Salmond's 
Jurisprudence,  §  101. 

32.  Lawrence  v.  Doe,  144  Ala. 
524,  41  So.  612;  De  Frieze  v. 
Quint,  94  Cal.  653,  28  Am.  St. 
Rep.  151,  30  Pac.  1 ;  Grimes  v. 
Ragiand,  28  Ga.  123;  McCIeUan 
V.  Kellogg.  17  111.  498;  Haas  v. 
Wilson,  97  Kan.  176,  154  Pac. 
1018;  Frazier  v.  Ison,  161  Ky. 
379,  170  S.  W.  977;  Reatty  v. 
Mason,  30  Md.  409;  Fugate  v. 
Pierce,  49  Mo.  441;  Little  v.  Down- 
ing, 37  N.  H.  355;  King  v.  Wells. 
94  N.  C.  344;  Wade  v.  Crouch. 
14  Okla.  593;  Bowman  v.  Bow- 
man. 35  Ore.  279;  Daniel  v.  Day- 
ton  Coal   &   Iron  Co.,   132   Tenn., 


1928 


Real  Pkoperty. 


[§  502 


of  proper  diligence."^  And  since  the  requisites  of 
''actual"  possession  are  usually  defined  with  reference 
to  the  sufficiency  of  such  acts  to  affect  the  owner  with 
notice  of  the  adverse  claim,  it  would  seem  somewhat 
questionable  whether  there  can  be  any  ''actual"  posses- 
sion which  is  not  at  the  same  time  "visible"  and  "no- 
torious." There  are,  however,  statements  to  be  found 
that  notoriety  of  possession  is  not  necessary  in  case 
the  possession  is  actually  known  to  the  rightful  owner,^^ 
statements  which  suggest,  by  implication,  that  there 
might  be  a  possession  sufficient  to  satisfy  the  require- 
ment of  actual  i^ossession,  but  not  sufficient  to  satisfy 
that  of  visible  and  notorious  jDOSsession. 

§  502.  Exclusiveness  of  possession.  In  order  that 
one  may  acquire  rights  in  land  by  possession  for  the 
statutory  period,  the  possession  must,  it  is  frequently 


501,  178  S.  W.  1187;  Mhoon  v. 
Cain,  77  Tex.  416;  Dignan  v. 
Nelson,  26  Utah,  186,  72  Pac. 
936. 

33.  Bynum  v.  Hewlett,  137  Ala. 
333,  34  Sj.  391;  School  Dist.  No. 
8  of  Tliompson  v.  Lynch,  33 
Conn.  336;  St.  Louis  A.  &  T.  H. 
R.  Co.  V.  Nugent,  152  111  119, 
39  N.  E.  263;  Alden  v.  Gilmorp. 
13  Me.  178;  Saumels  v.  Borrow- 
scale,  104  Mass.  207;  Merritt  v. 
Westerman,  180  Mich.  449,  1-17  N. 
W.  483;  Village  of  Glencoe  v. 
Wadsworth,  48  Minn.  402,  51  N. 
W.  ;;77;  Spicer  v.  Spicer,  249 
Mo.  51^2,  Ann.  Cas.  1914D,  238, 
155  S.  W.  832.  See  Editorial 
note,  11  Columbia  Law  Rev.  673; 
Carney  v.  Hennessey,  74  Conn. 
107.  53  L.  R.  A.  699,  92  Am.  St. 
Rep.  199,  49  Atl.  910;  St.  Louis 
etc.  R.  Co.  V.  Nugent,  152  111. 
119,  39  N.  E.  263;  Denham  v. 
Holeman,   26   Ga.   182. 


34.  Brown  v.  Cockrell,  33  Ala. 
47;  Trotter  v.  Neal,  50  Ark.  340, 
7  S.  W.  384;  Clarke  v.  Gilbert,  39 
Conn.  94;  Cook  v.  Babcock,  11 
Cush.  (Mass.)  206;  McCaughn  v. 
Young,  85  Miss.  277,  37  So.  839; 
Norton  v.  Kowazek, —  (Mo.) — 193 
S.  W.  556;  Dausch  v.  Crane,  109 
Mo.  323,  19  S.  W.  61;  Pease  v. 
Whitney,— N.  H.— ,  98  Atl.  62; 
Sheaffer  v.  Eakman,  56  Pa.  St. 
144;  McAuliff  v.  Parker,  10  Wash. 
141,  38  Pac.  744. 

35.  Ward  v.  Cochran,  150  U.  S. 
597,  37  L.  Ed.  1195;  Goodson  v. 
Brothers,  111  Ala.  589,  20  So. 
443;  Towle  v.  Quante,  246  111. 
568,  92  N.  E.  967;  Stump  v. 
Henry,  6  Md.  201,  61  Am.  Dec. 
301;  Bailey  v.  Carlton,  12  N.  H. 
9,  37  Am.  Dec.  190;  Cahill  v. 
Palmer,  45  N.  Y.  478;  CoUins 
V.  Lynch,  167  Pa.  St.  635,  31  Atl. 
921. 


§  50l>] 


ADviiESE   Possession. 


1929 


said,  be  exclusive.''^  It  must  be  exclusive  of  the  true 
owner  and  also  of  third  persons.  If  the  true  owner  is  on 
the  laud  as  o^^^ler,  the  possession  is,  in  the  eye  of  the 
law,  in  such  o^^^ler,^^  and  another  person  who  is  on 
the  land  has,  not  only  no  adverse  possession,  but  no  pos- 
session whatsoever.  He  is  on  the  land  either  as  a  licensee 
or  a  trespasser.^'^  If,  however,  the  true  owner  is  sho^vn 
to  be  on  the  land  merely  as  a  licensee,  not  asserting,  by 
word  or  act,  any  right  of  o^vnership  or  possession,  his 
presence  on  the  land  does  not  amount  to  an  actual 
possession,  and  the  possession  may  properly  be  attri- 
buted to  him  who  is  on  the  land  exercising  or  claiming 
exclusive   control  thereof.^* 

As  regards  the  requirement  that  the  possession  be 
exclusive  of  third  persons,  this  appears  to  follow  from 
the  very  nature  of  legal  possession.  If  two  or  more 
persons  are  on  land,  neither  having  title  thereto,  and 
each  claiming  possession  independently  of  the  other, 
neither    can    be    regarded    as    in    legal    possession    of 


36.  Reading  v.  Royston,  Salk. 
423;  Gafford  v.  Strauss,  89  Ala. 
282,  7  L.  R.  A.  568,  18  Am.  St. 
Rep.  Ill,  7  So.  248;  Inskup  v. 
Shields,  4  Harr.  (Del.)  345; 
Spencer  Christian  Church's  Trus- 
tees V.  Thomas,  27  Ky.  L.  Rep. 
250,  84  S.  W.  750;  Royer  v.  Ben- 
low,  10  Serg.  &  R.  (Pa.)  303; 
Illinois  Steel  Co.  v.  Tamms,  154 
Wis.  340,  141  N.  W.  1011;  Litt.  S 
701;  Lightwood,  Possession  of 
Land,  36. 

37.  See  Gafford  v.  Strauss,  89 
Ala.  282,  7  L.  R.  A.  568,  18  Am. 
St.  Rep.  Ill,  7  So.  248;  Hoyt  v. 
Zumwalt,  149  Cal.  381,  86  Pao. 
600;  Brumback  v.  Brumback,  198 
III.  66,  64  N.  E.  741;  Bellis  v. 
Bellis,  122  Mass.  414;  Smith  v. 
Hitchcock,  38  Neb.  104,  56  N.  W. 
791;  O'Hara  v.  Richardson,  46  Pa. 


385;  Lloyd  v.  Rawl,  63  S  C  219, 
41  S.  E.  312;  Larwell  v.  Stevens. 
(C.  C.)   12  Fed.  559. 

The  true  owner  has  been  re- 
garded as  being  in  possession  of 
land  over  which  the  eaves  of  his 
house  extended,  so  as  to  prevent 
the  assertion  of  adverse  posses- 
sion by  another  who  made  use  of 
the  land  under  the  eaves.  Lins 
V.  Seefeld,  126  Wis.  610.  105  N. 
W.  917,  approved  24  Harv.  Law 
Rev.  at  p.  232.  Contra,  Randall 
V.  Sanderson,  111  Mass.  114; 
Rooney  v.  Retry,  22  Ont.  L.  llo\^. 
101. 

38.  Feliz  v.  Feiiz,  105  Cal.  1. 
38  Pac.  521;  Owsley  v.  Owsley. 
117  Ky.  47,  77  S.  W.  397;  First 
Baptist  Church  of  Sharon  v.  Har- 
per.  191    Mhs'^    106    77   y    F.    778. 


1930  EE.VL  Pkoperty.  [§  503 

the  land.  Legal  possession  is  in  nature  exclusive."^ 
There  is,  however,  one  case  in  which  the  possession  of 
an  individual  is  not  exclusive,  and  that  is  in  the  case 
of  co-ownership.  In  that  case,  however,  the  possessions 
of  the  co-o\\mers  are  not  separate  possessions,  but 
rather  a  single  possession,  that  is,  as  stated  by  Black- 
stone,  a  unity  of  possession  exists.^^  In  the  case  of 
persons  thus  claiming  as  co-owners  the  possession  of 
each  or,  it  seems,  of  one  alone,*  ^  will  operate  in  favor  of 
all.''^ 

One  may  be  in  possession,  for  the  purpose  of 
acquiring  land  under  the  statutes  of  limitation,  al- 
though he  permits  the  public  to  pass  over  the  land,*^ 
nor  is  the  existence  of  an  easement  thereover  in  favor 
of  another  individual,*"*  or  of  the  public,*^  inconsistent 
with  his  acquisition  of  title. 

§  503.  Hostility  of  possession.  In  order  that  the 
statute  of  limitations  may  bar  one  of  his  right  to 
recover  land  it  is  necessary,  not  only  that  the  land  be 
in  possession  of  another,  but  that  such  possession  be 
"adverse"  or  "hostile"  to  the  true  o^\Tier.  It  is  some- 
what surprising,  in  view  of  the  frequency  with  which 
the  courts  have  recognized  this  requirement,  that  they 
have  so  seldom  ventured  to  explain  what  they  mean  by 
an  adverse  or  hostile  possession  as  distinguished  from 
one  which  is  not  adverse  or  hostile.     A  possession,  it 

39.  Lightwood,  Possession  of  44.  Randall  v.  Sanderson,  111 
Land,  14;  Pollor'k  &  Wright,  Pos-  Mass.  114;  Barker  v.  Publishers' 
session  21.  Paper    Co.— N.    H.— 97    Atl.    749; 

40.  2  Blackst.  Comm.  180,  191.  Sowles   v.   Butler,   71   Vt.   271,   44 

41.  Woodruff    V.    Roysden,    105  Atl.    355. 

Tenn.    491,    80   Am.    St.   Rep.   905,  45.     Webber    v.    Clark,    74    Cal. 

58  S.  W.  1066.  11,    15    Pac.    431;     Cady    v.    Fitz- 

42.  Hutchinson  v.  Chicago  etc.  simmons,  50  Conn.  209;  Rupley  v. 
R.  Co.,  41  Wis.  541;  Beedy  v.  Fraser,  132  Minn.  311,  156  N. 
Dine,  31  Pa.  13;  Ward  v.  Ward,  W.  350;  Woodruff  v.  Paddock,  130 
L.   R.   6  Ch.  789.  N.  Y.   618,   29  N.  E.  1021;    Cocke 

43.  Bendorff  v.  Uihlein,  1.''.2  v.  Texas  etc.  R.  Co..  46  Tex.  Civ. 
Tenn.   193,  177   S.  W.  481;.  App.  363,  103  S.  W.  407. 


§  503] 


Adveese   Possession. 


1931 


appears,  is  adverse  to  the  tiiie  owner  when  it  is  iiiiac- 
companied  by  any  recognition,  express  or  inferrible  from 
circumstances,  of  the  right  in  the  latter.  It  does  not 
involve  the  necessity  of  an  express  denial  of  the  title 
of  the  true  o^vner,  and,  it  is  evident,  in  the  majority  of 
cases  there  is  no  such  denial. 

The  requirement  that  the  possession  be  adverse  has 
its  logical  justification  in  the  consideration  that  the  rec- 
ognition by  the  person  in  possession  of  the  title  of 
the  true  owner  is  calculated  to  lull  the  latter  into  a  false 
sense  of  security  and  so  to  induce  him  to  refrain  from 
asserting  his  right  by  entry  or  action.  And  in  accord 
with  this  consideration  are  the  decisions,"**^  very  con- 
siderable in  number,  that  if  the  possession  w^as  originally 
not  adverse  to  the  true  owner,  the  statute  cannot  be  set 
in  motion  against  him  until  the  possessor  has  changed 
the  character  of  the  possession  by  a  denial  of  the  title 
of  such  owner,  and  such  change  has  been  brought  to 
the  knowledge  of  the  latter. 


46.  Trufant  v.  White,  99  Ala. 
536;  Cotton  v.  White,  131  Ark. 
273,  199  S.  W.  116;  Kerns  v. 
Dean,  77  Cal.  555;  Millett  v. 
Lagomarsino,  107  Cal.  102,  38 
Pac.  308:  Harrall  v.  Leverty,  50 
Conn.  46,  47  Am.  Rep.  608;  Trask 
V.  Success  Mining  Co.,  28  Idaho, 
483,  155  Pac.  288;  Thompson  v. 
Toledo,  St.  L.  &  W.  R.  Co.  271  111. 
11,  110  N.  E.  901;  Kirby  v.  Kirby, 
236  111.  255,  86  N.  E.  259;  Mc- 
Clenahan  v.  Stevenson,  118  Iowa, 
106,  91  N.  W.  925;  Frazier  v. 
Morris,  161  Ky.  72,  170  S.  W. 
496;  Lancey  v.  Parks,  102  Me.  135. 
66  Atl.  311;  Hall  v.  Stevens,  9 
Mete.  (Mass.)  418;  Compau  v. 
Lafferty,  50  Mich.  114,  15  N.  W. 
40;  Collins  v.  Colleran.  86  Minn. 
199,  90  N.  W.  3o4;  Stevenson  v. 
Black,  168  Mo.  549,  68  S.  W.  909; 
McCune    v.    Coodwillie,    204     Mo. 


306,  102  S.  W.  997;  Smith  v. 
Hitchcock,  38  Neb.  104,  56  N.  W. 
791;  Lewis  v.  New  York  &  H. 
R.  Co.,  162  N.  Y.  202,  56  N.  E. 
540;  Acton  v.  Culbertson,  38 
Okla.  280,  132  Pac.  81,2;  Coqullle 
Mill  &  Mercantile  Co.  v.  Johnson, 
52  Ore.  547,  1:52  Am.  St.  Rep. 
716,  98  Pac.  132;  Bannon  v.  Bran- 
don, 34  Pa.  St  263,  75  Am.  Dec. 
655;  Johns  v.  Johns,  244  Pa.  48, 
90  Atl.  535;  McCutchen  v.  Mc- 
Cutchen,  77  S.  C.  129,  12  L.  R. 
A.  (N.  S.)  1140,  57  S.  E.  678; 
Duke  V.  Harper,  6  Yerg.  (Tenn.) 
280,  27  Am.  Dec.  462;  Ilulvey  v. 
Hulvey,  92  Va.  192,  23  S.  R. 
233;  Graydon  v.  liurd,  55  Fed. 
724,  5  C.  C.  A.  258.  But  it  has 
been  decided  that,  if  one  pur- 
chases land  in  the  possession 
of  one  other  than  his  vendor, 
he    is    charired    wilh    noticf    Hint 


1932 


Real  Property. 


[§  503 


It  is  sometimes  said  that  the  possession  must  be 
adverse,  not  only  to  the  rightful  owner,  but  to  the  whole 
world.^^  Such  a  requirement  corresponds,  apjjarently, 
in  some  degree  to  the  requirement,  so  frequently  as- 
serted, that  the  possession  be  under  claim  of  title,  which 
is  the  subject  of  discussion  in  the  following  section. 
The  basis  of  the  asserted  requirement  that  possession 
be  adverse  to  the  whole  world  is  not  readily  percejitible. 
If  the  possession  is  adverse  to  the  rightful  owner,  it  is 
for  the  latter  to  assert  his  rights,  regardless  of  whether 
the  person  in  possession  mistakenly  assumes  that  the 
title  is  in  a  third  person."*"^ 

Question  of  fact.     The  question  whether  the 


possession    was    adverse    is    ordinarily    a    question  of 
fact.^8 

That  the  possession  was  adverse  may  be  shown  by 
evidence  that  possession  was  taken  under  color  of  title,^^ 


the  possession,  though  original- 
ly subservient  to  the  vendor's 
title,  had  become  hostile.  How- 
att  V.  Green,  139  Mich.  289, 
102    N.    W.    734. 

47.  Ashford  v.  Ashford,  136 
Ala.  632,  96  Am.  S't.  Rep.  82 
34  So.  10  (dictum) ;  Ballard  v. 
Hansen,  33  Neb.  861,  51  N.  W. 
295;  Bracken  v.  Union  Pac.  R. 
Co.,  75  Fed.  347,  21  C.  C.  A. 
387  (Nebraska);  Altschul  v. 
O'Neill,  35  Ore.  202,  58  Pac.  95; 
McNaught-Collins  Imp.  Co.  v. 
May,  52  Wash.  632,  101  Pac. 
237. 

47a.  That  the  possession  need 
not  be  adverse  to  the  whole 
world,  see  Skipwith  v.  Martin, 
50  Ark.  141,  6  S.  W.  514;  Hayes 
V.  Martin,  45  Cal.  559;  McManus 
V.  O'Sullivan,  48  Cal.  485; 
Adams  v.  Guerard,  29  Ga.  651, 
76  Am.  Dec.  624;  Mather  v. 
Walsh,    107    Mo.    121,    17    S.    W. 


755;  Smith  v.  Badura,  70  Ore. 
58,  139  Pac.  107;  Smith  v.  Jones, 
103  Tex.  632,  31  L.  R.  A.  (N. 
S.)  150,  132  S.  W.  469.  See 
note  in  14  Harv.  Law  Rev.  at 
p.  374,  criticizing  Bond  v.  O'Gara, 
177  Mass.  139,  83  Am.  St.  Rep. 
265,  58  N.  E.  189. 

48.  Hogan  v.  Kurtz,  94  U.  S. 
773,  24  L.  Ed.  317;  Snow  v. 
Bray,  Ala.,  73  So.  542;  Stevens, 
V.  Velde.  138  Minn.  59,  163  N. 
W.  796;  Page  v.  Gaskill,  84 
N.  J.  L.  615,  87  Atl.  460; 
Ramapo  Mfg.  Co.  v.  Mapes,  216 
N.  Y.  362,  110  N.  E.  772;  Stokes 
V.  Murray.  95  S.  C.  120,  78  S. 
E.  741. 

49.  Pillow  V.  Roberts,  13  How. 
(U.  S.)  472,  14  L.  Ed.  228; 
Oglesby  V.  Hollistel",  76  Cal.  136, 
9  Am.  St.  Rep.  177,  18  Pac. 
146;  Taylor  v.  Danbury  Public 
Hall  Co.,  35  Conn.  4.30;  Ken- 
drick   V.    Latham,    25    Fla.    819,    6 


§  503] 


Adverse    Possespiox, 


19.^", 


as  well  as  by  evidence  of  the  declarations  of  the  person 
in  possession  accompanying  his  possession.^''  It  may 
also  be  shown  by  evidence  of  acts  by  the  person  in  pos- 
session of  such  a  character  as  would  not  be  done  by 
him  if  he  conceded  the  other's  title."' ^  The  payment  by 
him  of  taxes  upon  the  land  has  been  regarded  as  evi- 
dence that  the  possession  is  adverse. ''- 

Burden  of  proof.     Since  the  element  of  liostil- 


ity  or  "adverseness"  involves  merely  the  absence  of  a 
course  of  action  of  an  affirmative  character,  that  is,  of 


So.  871;  Godfrej'  v.  Dixon  Power 
etc.  Co.,  228  lU.  487,  81  N.  E. 
1089;  Brady  v.  Baltimore,  130  Md. 
506,  101  Atl.  142  isemble);  Cha- 
bert  V.  Russell,  109  Mich.  571, 
67  N.  W.  902;  Brown  v.  Peaslee, 
69  N.  H.  436,  45  Atl.  234;  Warne 
V.  Greenbaum— (N.  J.)— 101  Atl. 
568;  Myers  v.  Folkman,  89  N. 
J.  L.  390,  99  Atl.  97;  La  Frani- 
bois  V.  Jackson,  8  Cow.  589,  18 
Am.  Dec.  463;  Steinwand  v. 
Brown,  38  N.  D.  602,  KiG  N.  W. 
129;  Dikeman  v.  Parrish,  6  Pa. 
St.   210,   47  Am.   Dec.   455. 

50.  Gibson  v.  Gaines,  — Ala. 
— ,  73  So.  929;  Stockton  Sav. 
Bank  v.  Staples,  98  Cal.  189, 
32  Pac.  936;  Knight  v.  Knight, 
178  Til.  553,  53  N.  E.  306;  Rand 
V.  Huff,  59  Kan.  777,  53  Pac. 
483;  Swope  v.  Ward,  185  Mo. 
316,  84  S.  W.  895;  Harnage  v. 
Berry,  43  Tex.  567.  The  admis- 
sibility of  such  evidence  is  dis- 
cussed with  references  to  cases, 
in    '■'>  Wigmore,   Evidence,   §    1778. 

51.  Grim  v.  Murphy,  110  111. 
271;  Rennert  v.  Shirk,  163  Ind. 
542,  72  N.  E.  546;  Dyer  v.  Eld- 
ridge,  136  Ind.  654,  .'36  N.  E.  522; 
Dean  v.  Goddard,  55  Minn.  290, 
56  N.  W.  1060;    Whitaker  v.  Erie 

2  R.  P.— 47 


Shooting  Club,  102  Mich.  454; 
60  N.  W.  983;  Davis  v.  Bowman, 
55  Miss.  671;  Benne  v.  Miller,  149 
Mo.  228,  50  S.  W.  824;  Brock  v. 
Bear,  100  Va.  562,  42  S.  E.  307; 
Pioneer  Wood  Pulp  Co.  v.  Chan- 
dos,  78  Wis.   526,  47  N.  W.  661. 

52.  Holtzman  v.  Douglas,  168 
U.  S.  278,  42  L.  Ed.  466;  Chas- 
tang  V.  Chastang,  141  Ala.  451, 
109  Am.  St.  Rep.  45,  'M  So.  799; 
Gee  V.  Hatley,  114  Ark.  376,  170 
S.  W.  72;  Frick  v.  Sinon,  75  Cal. 
337,  7  Am.  St.  Rep.  177,  17  Pac. 
439;  Wren  v.  Parker.  57  Conn. 
529,  6  L.  R.  A.  80,  14  Am.  St. 
Rep.  127.  18  Atl.  790;  Wilbur 
v.  Cedar  Rapids  &  M.  R.  R.  Co., 
116  Iowa,  65,  89  N.  W.  101; 
Carter  v.  Clark,  92  Me.  225.  42 
At.  398;  Whitman  v.  Shaw,  166 
Mass.  451,  44  N.  E.  333;  Sauers 
V.  Giddings,  90  Mich.  50,  51 
N.  W.  265:  Mattso.»i  v.  Warner. 
115  Minn.  520,  132  N.  W.  1127: 
Draper  v.  Shoot,  25  Mo.  197.  69 
Am.  Dec.  262;  Minimelberger- 
Harrison  Lumber  Co.  v.  Craig, 
248  Mo.  319,  154  S.  W.  73; 
Rover  v.  Benlow.  10  Serg.  u  R. 
30.!;  Hunter  v.  Malone,  49  Tex. 
Civ.   App.   116,    108   S.   W.   709. 


1934  Eeal  Property.  [§  503 

the  recognition  of  the  other's  title,  it  would  seem  that 
the  lack  of  hostility,  rather  than  the  presence  thereof, 
is  an  affirmative  fact  to  he  proven,  in  the  ahsence  of  cir- 
cumstances which  are  recognized  as  legally  sufficient  to 
create  a  presumption  that  the  possession  is  not  hostile, 
and  this  accords  witli  the  reason  of  the  matter.  Know- 
ing, or  having  reason  to  know,  that  his  land  is  in  the 
possession  of  another,  the  true  owner  should  he  barred 
by  reason  of  his  laches  in  asserting  his  own  right  of  pos- 
session, unless  he  can  show  that  he  was  induced  so  to 
do  by  the  possessor's  recognition  and  admission  of  his 
rights.  In  some  cases  this  view  has  been  adopted,  that 
the  possession  will,  in  the  absence  of  countervailing 
evidence,  be  presumed  to  be  hostile,^^  and  this  view 
would  seem  to  be  more  or  less  involved  in  the  numerous 
decisions  ""^  that,  by  reason  of  a  particular  relation, 
such  as  that  of  landlord  and  tenant  or  that 
of  trustee  and  cestui  que  trust,  the  posses- 
sion is  prima  facie  not  hostile  or  adverse,  this  appar- 
ently implying  that,  in  the  absence  of  such  a  relation, 
the  possession  is  prima  facie  hostile,  or  at  least  that  it 
is  not  prima  facie  lacking  in  hostility.  It  has,  however, 
frequently  been  asserted  that  the  person  claiming  by 
force  of  the   statute   of  limitations  has  the  burden  of 

53.     Boone    v.    Chiles,    10    Pet.  53   S.  C.  126,  121  S.  E.  3;    Toltec 

177,    223;    Alexander    v.    Wheeler,  Ranch    Co.    v.    Babcock,    24    Utah, 

69  Ala.  332;  Hammond  v.  Crosby.  183,     606     Pac.     876;      Morse     v. 

68  Ga.  767;  Craven  v.  Craven,  Churchill,  41  Vt.  649;  Illinois 
181  Ind.  553,  103  N.  E.  333,  105  Steel  Co.  v.  Budzisz,  106  Wis. 
N.  E.  806;  Frazier  v.  Morris,  499,  48  L.  R.  A.  830,  80  Am. 
161  Ky.  72,  170  S.  W.  496;  St.  Rep.  54;  81  N.  W.  1027,  82 
Zabriska's     Succession,     119     La.  N.   W.   534. 

1076,     44     So.     893;      Greene     v.  That     the     user     of     another's 

Anglemire,    77    Mich.    168,    43    N.  land    is   presumed   to   be  adverse, 

W.    772;     Davis    v.    Bowmar,    55  for    the    purpose    of    the    creation 

Miss.     742;     Monnot    v.    Murphy,  of    a    prescriptive    right    In    the 

207    N.    Y.    240,    100    N.    E.    742;  nature  of  an   easement,   see  post, 

Bryan    v.    Spivey,    109    N.    C.    57,  §    519,   note   73. 

13  S.  E.  766;   Neel  v.  McElhenny.  54.     Post,  §  513. 

69  Pa.   St.  300;    Satcher  v.  Grice, 


§  503] 


Adverse   Possession. 


1935 


showing  that  his  possession  was  hostile  or  adverse.^''  It 
is  presumably  true  that  such  wrongful  possessor  has  the 
burden  of  proof  in  the  sense  of  risk  of  non  persuasion 
of  the  jury,  but  in  so  far  as  we  mean  by  burden  of  proof 
the  duty  of  producing  evidence,^**  the  burden  as  to  the 
hostility  of  the  possession  properly  shifts,  it  is  sub- 
mitted, to  the  person  having  documentary  title,  so  soon 
as  the  other  has  introduced  evidence  of  his  possession 
for  the  statutory  period.  When  it  is  said,  as  it  fre- 
quently is  said,'^'''^  that  the  burden  of  showing  adverse 
possession  is  upon  the  party  asserting  it,  this  jirosum- 
ably  refers  to  the  burden  of  persuading  the  jury,  and 


55.  Ricard  v.  Williams,  7 
Wheat.  121  (semble) ;  Davis  v. 
Caldwell,  107  Ala.  526,  18  So. 
103;  Beasley  v.  Howell,  117  Ala. 
499,  22  So.  989;  Love  v.  Cowger, 
130  Ark.  445,  197  S.  W.  853; 
Janke  v.  McMahon,  Cal.  App., 
133  Pac.  21;  Russell  v.  Davis, 
38  Conn.  562;  Barrs  v.  Brace, 
38  Fla.  265,  20  So.  991;  Mc- 
Cullough  V.  East  Tennessee,  etc. 
R.  Co.,  97  Ga.  373,  23  S.  E. 
838;  Thompson  v.  Toledo,  St. 
Louis  &  W.  R.  Co.,  271  111.  11, 
110  N.  E.  901;  Benedict  v.  Bush- 
nell,  —  Ind.  App.—,  117  N.  E. 
267;  McClenahan  v.  Stevenson, 
118  Iowa,  106,  91  N.  W.  925; 
Edwards  v.  Fleming,  83  Kan.  653, 
33  L.  R.  A.  (N.  S.)  923,  112 
Pac.  836;  Mounts  v.  Mounts,  155 
Ky.  363,  159  S.  W.  819;  McCune 
V.  Goodwillie,  204  Mo.  .306,  102  S. 
W.  891;  Smith  v.  Sedalia.  152  Mo. 
283,  48  L.  R.  A.  711,  53  S.  W. 
907;  Weeping  Water  v.  Reed,  21 
Neb.  261,  31  N.  W.  797;  Johnson 
V.  Atlantic  R.  Co.,  73  N.  J.  L.  767, 
64  Atl.  1061;  Licari  v.  Carr, 
84  N.  .L  L.  345.  86  Atl.  421; 
Heller   v.    Cohen,    154    N.    Y.    299, 


48  N.  E.  527;  Rathbunville  Union 
Cemetery  Ass'n  v.  Betson,  208  N. 
Y.  364,  101  N.  E.  892;  Monk  v. 
Wilmington,  137  N.  C.  322,  49 
S.  E.  345;  Johns  v.  Johns,  244 
Pa.  48,  90  Atl.  535;  Smith  v. 
Estill,  87  Tex.  264,  28   S.  W.  801. 

56.  4  Wigmore,  Evidence,  §§ 
2485-2490. 

56a.  See  e.  g.  Jones  v.  Temple, 
117  Ark.  579,  176  S.  W.  143; 
Tippenhauer  v.  Tippenhauer,  158 
Ky.  639,  166  S.  W.  225:  Spicer 
v.  Spicer,  (Mo.),  155  S.  W.  832; 
Vanderbilt  v.  Chapman,  172  N. 
C.  809,  L.  R.  A.  1917C  143,  94 
S.  E.  703;  Stokes  v.  Murray,  95 
S.  C.  120,  78  S.  E.  741;  Village 
Mills  Co.  V.  Houston  Oil  Co., 
—  (Tex.)— 186  S.  W.  785;  People's 
Savings  Bank  v.  Bufford,  90 
Wash.  204.  155  Pac.  1068.  Oc- 
casionally the  statute  In  terms 
places  the  burden  of  proof  on 
the  party  asserting  adverse  pos- 
session. Blue  llidgo  Land  Co. 
V.  Floyd,  167  N.  C.  6S6,  83  S.  E. 
687,  88  S.  E.  862;  Slipppi-'k  v. 
Sheppick,  44  T'tah.  131.  13S  Pac. 
1169. 


193G  Real  Property.  [§  504 

such  is  probably  the  sense  in  wliicli  the  expression 
''burden  of  proof"  is  used  in  some  of  the  cases,  above 
cited,  in  which  it  is  stated  that  the  person  claiming  by 
force  of  the  statute  of  limitations  has  the  burden  of 
showing  that  his  possession  was  hostile  or  adverse. 

When  possession  was  taken  under  circumstances 
which  ordinarily  give  rise  to  a  presumption  that  it  is 
not  adverse,  the  burden  is  obviously  upon  the  possessor 
of  showing  that,-  by  reason  of  the  course  of  action 
adopted  by  him,  such  as  denial  of  the  title  of  the  rightful 
owner,  his  possession  has  become  adverse.^"^ 

§  504.  Necessity  of  claim  of  title.  It  has  been 
asserted,  by  perhaps  most  of  the  courts  in  this  country, 
that  in  order  that  the  statute  of  limitations  may  run  in 
favor  of  one  in  possession  of  land,  the  possession  must 
be  under  claim  of  right  or  title. ^^  There  would  seem 
reason  to  doubt,  however,  whether,  in  asserting  this  re- 
quirement, the  courts  ordinarily  have  in  mind  anything 
more  than  a  restatement  of  the  requirement  of  hostility 
of  possession. ^'^     They  do  not,  so  far  as  the  writer  has 

57.  Zeller  v.  Eckert  4  How.  v.  Wright,  .38  Nev.  25,  143  Pac. 
(U.  S.)  295;  McClenahan  v.  1184;  Vanderbilt  v.  Chapman,  175 
Stevenson,  118  Iowa,  106,  91  N.  N.  C.  11,  94  S.  E.  703;  Thomas 
W.  925;  McCune  v.  GoodwiUie,  v.  Spencer,  66  Ore.  359,  133 
204  Mo.  306,  102  S.  W.  997;  Pac.  822;  Vermont  Marble  Co.  v. 
Collins  V.  Colleran,  86  Minn.  199,  Eastman,  91  Vt.  425,  101  Atl. 
90  N.  W.  364;  Hall  v.  Stevens,  151;  Skanski  v.  Novak,  84  Wash. 
9  Mete.  (Mass.)  418.  See  aiite.  39,  146  Pac.  160;  Custer  v.  Hall, 
this  section,  note  46.  71  W.  Va.   119,  76   S.  E.  183. 

58.  See  e.  g.  McLester  Bldg.  59.  See,  for  instance,  occas- 
Co.  V.  Upchurch,  18  Ala.  23,  60  sional  statements  that  the  pes- 
So.  173;  Janke  v.  McMahon,  21  session  "must  be  adverse,  that  is, 
Cal.  App.  781,  133  Pac.  21;  under  a  claim  of  right."  Sar- 
Stowell  V.  Lynch,  269  111.  437,  gent  v.  Ballard,  9  Pick.  (Mass.) 
110  N.  E.  49;  Goulding  v.  251;  Colvin  v.  Burnet,  17  Wend. 
Shonquist,  159  Iowa,  647,  141  N.  (N.  Y.)  565;  State  v.  Heaphy, 
W.  24;  Chesapeake  &  O.  R.  Co.  88  Vt.  428,  92  Atl.  813.  And  see 
V.  Rosskamp,  179  Ky.  175,  200  S.  O'DonneU  v.  McCool.  89  Wash. 
W.   496;    Erickson  v.   Crosby,   100  537,    154   Pac.    1090. 

Neb.  372,   160  N.  W.  94:    Howard 


§  504] 


Adverse    Possession. 


193^ 


observed,  undertake  to  explain  why  a  claim  of  title  on 
the  part  of  the  possessor  is  necessary,  and  it  appears 
that  the  rightful  owner  is  quite  sufficiently  protected  by 
the  requirement  of  adverseness  or  hostility  of  posses- 
sion.*'°  Did  this  requirement  of  the  making  of  a  claim 
of  title  really  mean  what  it  appears  on  its  face  to  mean, 
that  the  person  in  possession  must  state  that  the  land 
belongs  to  him,  the  effect  would  be,  approximately,  to 
limit  the  operation  of  the  statute  of  limitations  to  the 
case  of  possession  by  one  who  believes  himself  to  have 
title,  since  one  who  knows  that  he  has  no  title  is  not  apt 
to  claim  title  until  his  title  is  questioned. 

The  notion  of  the  necessity  of  a  claim  of  title  may 
possibly  have  originated  in  the  following  manner.  One  is 
not  in  adverse  possession  in  case  he  makes  acknowledg- 
ment to  the  rightful  owner  of  the  latter 's  title,  that  is, 


60.  TRat  claim  of  right  or 
title  is  unnecessary,  see  Johnson 
V.  Gorham,  38  Conn.  513;  Car- 
ney V.  Hennessey,  74  Conn.  107, 
53  L.  R.  A.  699,  92  Am.  St.  Rep. 
199,  49  Atl.  910;  Campau  v. 
Dubois,  39  Mich.  274;  CarroU 
V.  Mays,  8  Dana.  (Ky.)  178 
(semble) ;  Rupley  v.  Fraser,  132 
Minn.  311.  156  N.  W.  350;  Rude 
V.  Marshall,  54  Mont.  27,  166  Pac. 
298;  Parker  v.  Southwick,  6 
Watts  (Pa.)  377,  per  Gibson,  C. 
J.;  Cox  V.  Sherman  Hotel  Co., 
(Tex.  Civ.  App.),  47  S.  W.  808. 
Claim  of  title  is  not  referred 
to  as  one  of  the  necessary  ele- 
ments of  adverse  possession  by 
the  Supreme  Court  of  the  United 
States.  See  Holtzman  v.  Doug- 
las, 168  U.  S.  278,  42  L.  Ed.  466. 
"The  whole  inquiry  is  reduced 
to  the  fact  of  entering  and  the 
intention  to  usurp  possession." 
Per  Johnson,  J.,  in  Bradstreet 
V.   Huntington.   T,    Pet.   402,   439. 


In  Texas  the  statute  defines 
adverse  possession  as  an  actual 
and  visible  appropriation  of  the 
land,  commenced  and  continued 
under  a  "claim  of  right  incon- 
sistent with  and  hostile  to  the 
claim  of  another,"  but  the  ex- 
pression claim  of  right  in  the 
statute  has  been  decided  to  mean 
merely  that  "the  entry  of  the 
limitation  claimant  must  be  with 
the  intent  to  claim  the  land  as 
his  own,  to  hold  it  for  himself." 
and  that  "such  must  continue 
to  be  the  nature  of  his  posses- 
sion." Houston  Oil  Co.  of  Texas 
V.  Jones,  —Tex.-.  198  S.  W. 
290.  See  Brown  v.  Fisher.  — 
Tex.  Civ.—,  193  S.  W.  357.  And 
in  Wisconsin  a  statutory  require- 
ment that  the  land  be  held  under 
"claim  of  title"  was  regardpd  as 
satisfied  if  there  was  an  entry 
hostile  to  the  whole  worli.  and 
an  Intention  on  the  part  of  (he 
possessor    "lo    Imld    llie    land    as 


1938  Eeal  Propekty.  [§  504 

in  case  he  disclaims  title  in  himself,^^  and  there  is  au- 
thority for  the  view  that  his  possession  is  not  adverse 
if  he  acknowledges  the  title  of  the  rightful  owner  b}^ 
a  communication  to  a  third  person.*^^  It  being  conceded 
that  the  statute  does  not  run  if  there  is  a  disclaimer  of 
title  by  the  person  in  possession,  it  was  perhaps  as- 
sumed as  a  corollary  that  a  claim  of  title  by  such  per- 
son was  necessary  to  the  running  of  the  statute.  This 
explanation  of  the  origin  of  the  requirement  is,  how- 
ever, purely  conjectural,  and  occasionally  a  different 
theory  in  this  regard  is  indicated  by  expressions  to  the 
effect  that  the  statute  of  limitations  runs  only  when 
there  is  a  technical  disseisin,  as  recognized  at  common 
law,  and  that  such  a  disseisin  involves  the  necessity  of 
a  claim  of  title.  In  reference  to  such  a  theory,  it  may 
be  said  in  the  first  place,  as  before  explained,  that  ad- 
verse possession  and  disseisin  are  not  absolutely  the 
same.^^  In  the  second  place,  claim  of  title,  that  is,  of 
right,  appears  never  to  have  been  regarded  as  neces- 
sary to  effectuate  a  disseisin.  The  old  digests  make  no 
mention  of  such  a  requirement,  and  that  it  did  not 
exist  is  sufficiently  apparent  from  the  fact  that  there 
might  be  disseisin  by  one  person  for  the  use  of  another, 
which  operated  as  a  disseisin  by  the  former  alone  until 
agreed  to  by  the  latter,  and  after  such  agreement  made 
them  both  disseisors.^*  Indeed  the  repeated  statements 
that  one  who  wrongfully  dispossesses  another,  though 
he  claims  merely  as  tenant  for  years  or  by  statute,  or 
even  as  tenant  at  will,  is  a  disseisor,  for  the  reason  that 
he  cannot  qualify  his  own  wrong,^^  would  seem  to  show 
that  claim  of  title  by  him  was  immaterial."'^ 

his  own."     Chicago  &  N.  W.  Rwy.  Co.    Litt.    180b. 

Co.   V.   Groh,   85   Wis.    641,    55    N.  65.     1     Rolle's     Abr.     Disseisin 

W.    714.  (I);     Vin.     Abr.     Disseisin     (I); 

61.  Post.    §    507,   note   37.  Com.  Dig.  Seisin,   (Fl);   Co.  Litt. 

62.  Post,    §    507,   note   38.  271.     See  post,      511,  notes   16-18. 

63.  Ante,   §   500.  notes   18-20.  66.     As    to    the    asserted    neces- 

64.  See     Vin.     Abr.     Disseisin  sity,     that    to    constitute    a     dis- 
(B);    Bac.    Abr.    Disseisin     (A);  seisin,    there    must    be    an    inten- 


§  504]  Adverse    Possession.  193i) 

It  has  been  said  that  by  claim  of  right  or  title,  in 
connection  with  the  doctrine  of  adverse  possession,  is 
meant  merely  "an  intention  to  appropriate  and  hold  the 
land  as  owner,  and  to  the  exclusion,  rightfully  or  wrons- 
fully,  of  every  one  else."*^'  It  is  most  unfortunate,  if 
this  is  the  idea  which  the  courts  intend  to  convey,  that 
they  use  language  which  on  its  face  means  something 
entirely  different.  The  presence  of  such  an  intention  to 
appropriate  is  no  doubt  necessary  for  the  purpose  of 
adverse  possession,  but  this  is,  it  is  submitted,  not  be- 
cause without  it  the  possession  would  not  be  adverse, 
but  because  without  it  there  would  be  no  possession.*^^ 

It  was  recognized  at  common  law  that,  in  determin- 
ing whether  one  was  a  disseisor  or  a  trespasser  merely, 
his  intention,  as  indicated  by  his  acts,  was  to  be  con- 
sidered,^^ and  so  at  the  present  day,  in  determining 
whether  one  person  has  taken  possession  of  property 
previously  in  the  possession  of  another,  his  acts  must 
be  such  as  to  show  his  intention  to  exercise  exclusive 
control,  at  least  for  the  time  being."^  And  this,  it  is 
conceived,  must  be  the  meaning  of  the  occasional  judicial 
statements   that,   in  order  to   acquire  title   by  adverse 

tion   to    claim    a   fee,    see   post,    §  hoc    fecerit,     language    which     is 

511,   note    19.  again    quoted    in   Towle    v.    Ayer, 

67.  Sedgwick  &  Wait,  Trial  of  8  N.  H.  57;  Bond  v.  O'Gara,  177 
Title  to  Land  (2d  Ed.),  §  756,  Mass.  139,  83  Am.  St.  Rep.  265, 
quoted,  apparently  with  approval,  58  N.  E.   275. 

by    Holmes,    C.    J.,     in    Bond    v.  70.     So    in    Pollock    v.    Wright. 

O'Gara    177    Mass.    139,    83    Am.  Possession,    §    14,    it    is   said    that 

St.    Rep.   265,   58  N.  E.   275.     See  "to     constitute     a     dispossession 

also,     to    the    same     effect.    Fear  there     must     in     every     case     be 

V.  Barwise,  93  Kan.  131,  143  Par.  positive    acts    which    can    be    rc- 

505;    Rupley  v.  Eraser.  132  ^linn.  ferred    only    to    the    intention    of 

311,     156    N.    W.    350;     Morrison  acquiring  exclusive  control."  And 

V.    Linn,    50   Mont.    396,    147    Pac.  as    to    the    necessity    of    the    ele- 

166     (construing    statute).  ment    of    intention    in    posses-slon 

68.  Ante,  §   14.  see      Lightwood,      Possession     of 

69.  Co.  Lift.  15.3b,  quoting  Land,  p.  21;  Holmes,  The  Com- 
the  statement  of  Bracton  quae-  mon  Law,  206  et  scq.;  Salmond, 
rendum   est   a  judice,   quo   anirno  Jurisprudence,    §    97. 


1940 


Real  Property. 


[§  504 


possession,  there  must  be  an  intention  to  claim  title. "^ 
That  is,  there  must  be  an  intention  to  assert  dominion 
over  the  property  to  the  exclusion  of  others.  But  the 
requirement  of  an  intention  to  exercise  exclusive  con- 
trol over  the  property,  involved  in  the  asserted  necessity 
of  "an  intention  to  claim  title,"  in  order  that  the  right- 
ful owner  may  be  regarded  as  dispossessed,  is  to  be  dis- 
tinguished from  the  asserted  requirement  of  a  "claim 
of  title,"  in  order  to  make  the  statute  of  limitations 
elTective  as  against  the  dispossessed  owner. 

As  tending  to  negative  any  requirement  of  claim  of 
risht  or  title  as  necessary  to  put  the  statute  of  limita- 
tions in  motion,  reference  may  be  made  to  the  general 
acceptance  of  the  view  that,  in  the  absence  of  an  ex- 
press statutory  requirement  to  that  effect,  the  statute 
will  run  regardless  of  whether  the  wrongful  possession 
was   taken  under  a   bona  fide  claim  of  right. '^-     There 


71.  Brown  v.  Cockerall,  33  Ala. 
38;  Wilson  v.  Hunter,  59  Ark. 
626,  43  Am.  St.  Rep.  63,  28 
S.  W.  419;  Watrous  v.  Morrison, 
33  Pla.  261,  39  Am.  St.  Rep.  139, 
14  So.  805;  Riley  v.  Griffin,  16 
Ga.  141;  Winn  v.  Abeles  35 
Kan.  85,  57  Am.  Rep.  138,  10 
Pac.  443;  Worcester  v.  Lord,  56 
Me.  265,  96  Am.  Dec.  456;  Ford 
V.  Wilson,  35  Miss.  490,  72  Am. 
Del.  137;  Pharis  v.  Jones,  122 
Mo.  125,  26  S.  W.  1032;  Simmons 
V.  Nahant  3  Alien  (Mass.)  316; 
Haney  v.  Breeden,  100  Va.  781, 
42    S.   E.   916. 

72.  Newsome  v.  Snow,  91  Ala. 
641,  24  Am.  St.  Rep.  934,  8  So. 
377;  Unger  v.  Mooney,  63  Cal. 
586,  49  Am.  Rep.  100;  Montgom- 
ery &  Mullen  Lumber  Co.  v. 
Quimby,  164  Cal.  250,  128  Pac. 
402;  French  v.  Pearce,  8  Conn. 
443,  21  Am.  Dec.  480;  May  v. 
Dobbins,    166    Ind.    331,    77    N.    E. 


353;  Rutter  v.  Small,  68  Md.  133, 
6  Am.  St.  Rep.  434,  11  Atl.  698; 
Warren  v.  Bowdran,  156  Mass. 
280,  •  31  N.  E.  300;  Dawson  v. 
Falls  City  Boat  Club,  136  Mich. 
259  112  Am.  St.  Rep.  363,  99  N. 
W.  17;  Wilkerson  v.  Eilers,  114 
Mo.  245,  21  S.  W.  514;  Omaha 
&  F.  Land  &  Trust  Co.  v.  Han- 
sen, 32  Neb.  449,  49  N.  W.  456; 
Foulke  V.  Bond,  41  N.  J.  L.  527; 
Humbert  v.  Trinity  Church  24 
Wend.  (N.  Y.)  587;  Morrison  v. 
Holliday,  27  Ore.  175,  39  Pac. 
1100;  Reeves  v.  Dougherty,  7 
Yerg.  (Tenn.)  222,  27  Am.  Dec. 
496;  Kinney  v.  Vinson,  32  Tex. 
135;  Lampman  v.  Van  Alstyne, 
94  Wis.  417,  69  N.  W.  171;  Ovig 
V.  Morrison  142  Wis.  243,  125 
N.   W.    449. 

In  Iowa  good  faith  is  neces- 
sary; Litchfield  v.  Sewel,  97 
Iowa,  247,  66  N.  W.  104;  Clark 
V.    Sexton,    122    Iowa,    310,    98    N. 


§  5011 


Adverse    Possessiox. 


1941 


would  seem  to  bo  a  certain  inconsistency  between  such 
a  view  and  the  view  that  the  statute  will  not  run  unless 
the  wrongful  possessor,  after  obtaining  possession,  as- 
serts a  claim  of  right. '^  To  re(iuire  one,  in  order  to 
enjoy  the  benefit  of  the  statute,  to  assert  a  claim  of 
right,  even  though  he  knows  it  to  be  false,  involves  the 
placing  of  a  premium  upon  dishonesty,  in  contravention 
of  the  ordinary  judicial  policy.'^ 

Evidence.     Conceding  the  necessity  of  a  show- 


ing by  the  person  in  possession  of  a  claim  of  right  or 
title  on  his  part,  such  claim  may  no  doubt  be  shown  by 
evidence,  of  declarations  by  the  possessor,'"'  but  ordi- 
narily, it  appears,  it  is  to  be  inferred  from  the  fact  that 
the  possessor's  entry  was  under  color  of  title,'^"  or  from 
the  doing  of  acts  by  the  possessor  during  his  posses- 


W.  127;  Goulding  v.  Shonquist, 
159  Iowa,  647,  141  N.  W.  24. 
And  such  seems  to  be  the  view 
of  the  court  in  Jaspersoh  v. 
Scharnikow,  150  Fed.  571;  Skan- 
ski  V.  Novak,  84  Wash.  39,  146 
Pac.   160. 

73.  "The  expressions  claim  of 
title,  or  right,  or  ownership  are, 
in  connection  with  a  naked  ad- 
verse possession,  inaccurate,  for 
they  imply  a  belief  in  the  valid- 
ity of  the  claim,  or  good  faith 
on  the  part  of  the  claimant." 
Sedgwick  &  Wait,  Trial  of  Title 
to  Land,  §  756.  But  it  has  been 
said  in  a  recent  New  York  case 
that  claim  of  right,  though  neces- 
sary, need  not  be  bona  fide;  Ram- 
apo  Mfg.  Co.  V.  Mapes,  216  N. 
Y.  362,  110  N.  E.  772. 

74.  In  Iowa  it  has  been  said 
that  one's  knowledge  of  a  de- 
fect in  his  title  is  not  incom- 
patible with  good  faith  on  his 
part.  Hughes  v.  Wyati,  146  Iowa, 
392,    125    N.    W.    .'U;     Collins    v. 


Reimers,    181    Iowa,    1143,    165    N. 
W.    373. 

75.  Henry  v.  Brown.  143  Ala. 
446,  39  So.  325.  And  see  the 
following  cases,  in  which  asser- 
tions of  title  by  the  wrongful 
possessor  were  admitted  to  show 
the  adverse  character  of  the 
possession.  Stockton  Sav.  Bank 
V.  Staples,  98  Cal.  189;  St. 
Peters  Church  \.  Beach,  26  Conn. 
355;  Burr  v.  Smith,  152  Ind.  469, 
53  N.  E.  4;  Cottle  v.  Howerton, 
18  Ky.  L.  Rep.  121,  .15  S.  W.  552; 
Jacobs  v.  Callaghan,  57  Mich.  11, 
23  N.  W.  454;  Brown  v.  Kohoul, 
61  Minn.  113,  63  N.  W.  248; 
Westenfelder  v.  Creen,  24  Ore. 
448,  34  Pac.  i23;  Texas  &  N.  O. 
R.  Co.  V.  Broom,  5:^  Tex.  Civ. 
App.    78.    114    S.    W.    655. 

76.  Goodson  v.  Brotliers.  Ill 
Ala.  589,  20  So.  453;  Shlpwith 
V.  Martin,  50  Ark.  141,  6  S.  W. 
514;  Wiggins  v.  Brewster,  1:11 
Ga.  162.  62  S.  E.  40;  HadJock 
V.    Leary    148    N.    C    37S.    62    S. 


194: 


Eeal  Property. 


[§  504 


sioii  such  as  ordinarily  only  an  owner  would  do,"'^  such 
as  the  making  of  improvements,^^  or  the  payment  of 
taxesJ''  In  other  words  the  claim  of  title  is  to  be  estab- 
lished by  evidence  of  the  same  character  as  is  ordinarily 
relied  on  to  establish  the  hostile  or  adverse  character 
of  the  possession,^*^  a  consideration  which  harmonizes 
with  the  view  above  suggested,  that  in  asserting  the 
necessity  of  a  claim  of  title,  the  courts  ordinarily  in- 
tend merely  to  restate  the  requirement  of  hostility  or 
adverseness  of  possession. 

Recognition  of  title  in  third  person.     Apart 


from  the  fact  that,  as  involving  an  affirmative  fact,  it  is 
calculated  to  place  upon  the  person  in  possession  the 
burden  of  proof,  and  from  the  consideration  that  the 
presentation  of  this  additional  issue  is  calculated  to  con- 
fuse the  jury,  it  does  not  seem  that  the  assertion  of  the 


E.  426;  Power  v.  Kitching,  10  N. 
D.  254,  88  Am.  St.  Rep.  691,  86 
N.   W.    737. 

77.  Kidd  V.  Browne,  — Ala. — , 
76  So.  65;  Lyons  v.  Stroud,  257 
111.  350,  100  N.  E.  973;  Rennert 
V.  Shirk,  163  Ind.  542,  72  N.  E. 
546;  Craven  v.  Craven,  181  Ind.' 
553,  103  N.  E.  333;  Woodcock  v. 
Crosby's  Unknown  Heirs,  92  Neb. 
723,  139  N.  W.  646;  Smith  v. 
Badura,  70  Ore.  58,  139  Pac.  107. 

In  New  York  the  statute  re- 
quires possession  under  claim  of 
title,  but  it  is  said  that  the  ac- 
tual possession  and  improvement 
of  the  premises,  as  owners  are 
accustomed  to  possess  and  Im- 
prove their  estates,  without  any 
payment  of  rent  or  recognition 
of  title  in  another  will,  unless 
rebutted  by  other  evidence,  estab- 
lish the  fact  of  a  claim  of  title. 
Barnes  v.  Light,  116  N.  Y.  34, 
22  N.  E.  441;  Monnot  v.  Murphy, 
207   N.   Y.   240,   100   N.   E.   742. 


78.  Normant  v.  Eureka  Co., 
98  Ala.  181,  39  Am.  St.  Rep.  45, 
12  So.  454;  Lick  v.  Diaz,  44 
Cal.  479;  Grim  v.  Murphy,  110 
111.  271;  Illinois  Cent.  R.  Co.  v. 
Houghton,  126  111.  233,  1  L.  R. 
A.  213,  9  Am.  St.  Rep.  581;  Ren- 
neot  V.  Shirk,  163  Ind.  542,  72 
N.  E.  546;  Dean  v.  Goddard,  55 
Minn.  290,  56  N.  W.  1060;  Barnes 
V.  Light,  116  N.  Y.  34;  Rowland  v. 
Williams,  23  Ore.  515.  32  Par. 
402;  La  Frambois  v.  Jackson,  8 
Cow.    (N.  Y.)    603. 

79.  Prick  v.  Sinon,  75  Cal.  337, 
7  Am.  St.  Rep.  177.  17  Pac.  439; 
Beecher  v.  Ferris,  117  Mich.  108, 
75  N.  W.  294;  Murphy  v.  Doyle, 
37  Minn.  113,  33  N.  W.  220; 
Allen  V.  Mansfield,  108  Mo.  343, 
18  S.  W.  901;  Dredla  v.  Patz, 
78  Neb.  506,  111  N.  W.  136; 
Thompson  v.  Burhans,  79  N.  Y. 
93;  Paine  v.  Hutchins,  49  Vt. 
314. 

80.  Ayite,    §    503,    notes    49-52. 


§  504]  Adverse.    Possession.  1943 

requii'ement  of  claim  of  title  rather  than  mere  adverse- 
ness  or  hostility  of  possession  will,  in  the  ordinary  case, 
affect  the  result.  That  is,  if  the  jury  can  find  that  the 
possession  is  adverse,  it  mil  probably,  from  a  consid- 
eration of  the  same  evidence,  find  that  it  is  under  claim 
of  title.  In  one  case,  however,  the  assertion  of  this  re- 
quirement might  become  of  primary  importance,  that 
is,  when  the  wrongful  possession  was  taken  under  the 
mistaken  impression  that  the  title  is  in  a  third  person, 
and  with  full  recognition  of  the  supposed  rights  of  such 
person.  If  possession  adverse  to  the  whole  world  ^^  is 
necessary  to  make  the  statutory  bar  effective  as  against 
the  true  owner,  the  possession  in  the  case  supposed  is 
insufficient,  although  it  be  clearly  adverse  to  the  right- 
ful owner.  What  is  in  substance  this  state  of  facts  has 
been  presented  in  a  number  of  cases  in  which  one  took 
and  held  possession  of  vacant  lands  belonging  to  an- 
other, under  the  impression  that  it  belonged  to  the 
government.  In  the  majority  of  these  cases  it  has  been 
decided  that  the  statute  of  limitations  runs  under  such 
circumstances,^-  while  in  others  the  contrary  view  has 
been  adopted,  on  the  ground  that  there  is  no  claim  of 
title  by  the  person  in  possession,  or,  as  otherwise  ex- 
pressed, his  possession  is  not  adverse  to  the  whole 
world.^'^    If  claim  of  title  is  necessary  to  enable  the  stat- 

81.  Ante,   §   503,   note  47.  Civ.  App.  60,  77  S.  W.  41G;  True- 

82.  Page  v.  Fowler,  28  Cal.  heart  v.  Graham,  —  Tex.  Civ. 
611;  Hayes  v.  Martin,  45  Cal.  App. — ,  141  S.  W.  281;  Francoeur 
559;  Blumer  v.  Ohio  Land  Co.,  v.  Newhouse,  43  Fed.  236;  North- 
129  Iowa,  32,  105  N.  W.  342;  ern  Pac.  R.  Co.  v.  Kranich,  r^2 
Rathbone  v.  Boyd,  30  Kan.  485,  Fed.  911.  See  editorial  notes, 
2  Pac.  664;  Maas  v.  Burdetzke,  9  Columbia  Law  Rev.  640;  12  Id. 
93    Minn.    295,    106    Am.    St.    Rep.  364;    10  Mich.  Law  Uev.  406. 

436,   101   N.  W.   182;    Boe  v.   Arn-  83.     Hunnewell      v.      Burchelt. 

old,    54    Ore.    52,    20    Ann.    Cas.  152   Mo.    611.    54    S.    W.   487;    Alt- 

533,     102     Pac.     290;     Sharpe     v.  .schul    v.   O'Neill,    35   Ore.   202.   58 

Catron,  67  Ore.  368,  136  Pac.  20;  Pac.     95;     Schleicher     v.     Gatlin. 

Smith    V.    Jones,    103    Tex.     632,  85   Tex.    270,    20    S.    W.    120;    Mc- 

31   L.   R.  A.    (N.    S.)    150,   132    S.  Naught-Collins    Imp.    Co.    v.    May, 

W.  469;  Price  v.  Eardley,  34  Tex.  52     Wash.     632,     101     Pac,     237; 


1944  Real  Property.  [§  504 

ute  to  run,  it  is  difficult  to  see  how  it  can  run  when  the 
])ossessor  admits  the  title  to  be  in  the  government,  even 
though  such  admission  is  based  on  a  mistake.  The  stat- 
ute does  run  in  such  case,  it  is  submitted,  for  the  reason 
that  the  possession  is  adverse  to  the  rightful  owner,  and 
the  latter  is  not  excused  from  asserting  his  rights  within 
the  limitation  period  by  the  fact  that  the  adverse  pos- 
session is  accompanied  by  an  assertion  of  title  in  a  third 
person.  That  such  a  view  is  incompatible  with  the  as- 
serted requirement  of  claim  of  title  by  the  possessor 
would  seem  to  be  merely  an  additional  reason  for  ques- 
tioning w^hether  claim  of  title  is  properly  necessary  in 
order  that  the  statute  may  run. 

The  necessity  that  the  possession  be  under  claim 
of  title  has  been  referred  to  as  ground  for  holding  that 
the  possession  of  a  "mere  squatter"  is  insufficient  to 
give  title  under  the  statute  of  limitations.-^  The  ex- 
pression "squatter"  is  somewhat  lacking  in  certainty, 
but  it  ordinarily  means  one  who,  while  in  possession  of 
another's  land,  admits  that  the  title  is  in  another  per- 
son, even  though  without  knowledge  of  such  person's 
identity.  There  is  in  such  case  no  claim  of  title  by  the 
person  in  possession,  but  even  apart  from  that  con- 
sideration, the  possession  would  seem,  by  reason  of  the 

Skanski   v.    Novak,    84   Wash.    39,  session  acknowledged  that  he  had 

146      Pac.      160.      See      editorial  no    title    to    the    land    was    held 

notes  5  Columbia  Law  Rev.  605;  not    to    prevent    the    running    of 

18  Harv.  Law  Rev.  180.  the  statute  in  his  favor,  he  hav- 

84.     Gay  v.  Mitchell,  35  Ga.  139,  ing  "entered  to  hold  the  land  as 

89    Am.    Dec.    278;     Bell    v.    Fry,  long  as   he   could." 


5  Dana  (Ky.)  341;  Blake  v 
Shiver,  27  Wash.  593,  68  Pac 
330;  Jasperson  v.  Scharnikow 
150  Fed.  571;  Parkersburg  In 
dustrial  Co.  v.  Schultz,  43  W.  Va 
470,  27  S.  E.  255.  See  Baber  v 
Henderson,    156   Mo.   566,   79   Am 


in    Patterson    v.    Reigler,    4    Pa 
St.    201,    that   the   person    in    pos- 


In  Northern  Pacific  Ry.  Co.  v. 
Concannon,  75  Wash.  591,  135 
Pac.  652,  the  fact  that  the  one 
in  possession  made  valuable  im- 
provements on  the  land  was  re- 
garded as  showing  that  he  was 
something     more     than     a     mere 


St.  Rep.  540,  57   S.  W.   719.     But      squatter,    for   the    purpose   of   the 


statute    of   limitations. 


§  504]  Advf.ese    Possf.sstox.  1945 

recognition  of  another's  title,  to  he  deprived  of  the  ele- 
ment of  hostility  or  adverseness,  concedino;,  that  is,  that 
an  acknowledgment  of  another's  title  will  operate  to 
deprive  possession  of  the  element  of  adverseness,  al- 
though such  acknowledgment  is  not  made  directly  to 
such  other.'"'' 

Claim  of  easement.    The  statement  occasionally 

made  that  possession  under  a  claim  to  a  mere  ease- 
ment does  not,  although  continued  for  the  statutory 
period,  confer  title  to  the  fee,*^"  involves  the  miscon- 
ception that  one  merely  exercising,  or  undertaking  to 
exercise,  "an  easement  in  land,  has  i)Ossession,  or  may 
have  possession,  of  the  land.  He  does  not  acquire  title 
to  the  land  by  adverse  possession,  for  the  reason  that 
he  never  had  possession,  adverse  or  nonadverse.'^' 

Claim  of  fee  simple.     Ap])lying  and  extending 

the  asserted  requirement  of  claim  of  title,  it  has  occa- 
sionally been  said  that  the  statute  runs  in  favor  of  the 
person  in  possession  only  if  he  claims  title  in  fee.-""*  In 
so  far  as  this  may  mean  that  the  statute  does  not  run 
against  the  rightful  owner,  if  the  possessor  recognizes 

85.  Post,    §    507,    note   38.  Atl.    97;     BedeU    v.    Shaw.    59    N. 

86.  Dothard  v.  Denson,  75  Ala.      Y.   46. 

482;    Indianapolis  R.  Co.  v.  Ross,  In  New  York  the  statute,  which 

47     Ind.     25.       See     O'Banion     v.  asserts  the  necessity  of  claim   of 

Cunningham,    168    Ky.    322,    Ann.  title  in  order  that  the  possession 

Cas.   1917A,   1017,   182   S.  W.   185,  may  be  adverse,  has  been  regard- 

Roe    V.    Strong,    107    N.    Y.    350,  ed   as   requiring  a   claim   of   title 

14  N.  E.  294.  ill     fee,    so    that    if    the    person 

87.  But  in  Long  Island  Rail-  in  possession  claims  merely  an 
way  Co.  y.  Mulry,  212  N.  Y.  108,  estate  for  years,  the  statu!*;  does 
105  N.  E.  806,  it  seems  to  be  held  not  run  in  his  favor.  I^e-Joll  v. 
that  a  railroad  company  is  in  Shaw,  59  N.  Y.  46.  But  a  claini 
possession  though  asserting  an  by  a  railroad  company  to  a  rlKlU 
easement  merely,  of   way    merely    has   been    regard- 

88.  Harden  v.  Watson,  104  ed  a?  so  closely  eriuivalent  to  a 
Ark.  641,  148  S.  W.  506;  lona  claim  of  title  in  fee  as  to  enable 
V.  Uu,  16  Hawaii,  432;  Laport  v.  the  statute  to  run.  Lour  l.sland 
Todd,  32  N.  J.  L.  131;  Myers  K.  Co.  v.  Mulry.  211!  N.  V.  lo8. 
V.    Folkman,   89   N.   J.    L.   3-90,   99  105   N.    E.    80G. 


1946  Real  Property.  [§  505 

tlie  fee  simple  as  being  in  such  owner,  there  can  be  no 
question  as  to  the  correctness  of  the  statement.  But  in 
so  far  as  it  may  mean  more  than  this,  it  would  appear 
to  be  open  to  question,  even  conceding  that  some  claim 
of  title  is  necessary.  Opposed  to  such  a  view  are  the 
cases,  hereafter  referred  to,^^**  in  which  a  conveyance  or 
devise  having  been  made  to  a  person  for  life  with  re- 
mainder to  another,  entry  and- possession  by  the  former 
were  held  to  enure  to  the  benefit  of  the  latter,  so  as  to 
vest  in  him  a  fee  simple  estate.  And  the  possession  of 
one  holding  under  a  lease  for  years,  though  this  involves 
no  claim  on  his  part  to  the  fee  simple,  is  sufficient  as 
against  the  rightful  owner.^*^ 

§  505.  Mistake  in  locating  boundary.  The  ques- 
tion has  frequently  arisen  whether,  when  an  owner  of 
land,  by  mistake  as  to  the  boundary  line  of  his  land,  takes 
possession  of  another's  land,  and  holds  it  for  the  statu- 
tory period,  he  thereby  acquires  the  title  as  against  the 
real  owner.  In  some  states,  in  such  a  case,  the  posses- 
sion has  been  regarded  as  adverse,  without  reference  to 
the  fact  that  it  is  based  on  mistake,  it  being  sufficient 
that  there  is  an  actual  and  visible  possession  without 
any  recognition  of  the  other's  title. ^"^     In  other  states 

88a.     Post,  §  511,  notes  30-33b.  Velde,    138    Minn.    59,    163    N.    W. 

89.  Ante,  §  501,  note  31.  796;    Crowder   v.    Neal,    100   Miss. 

90.  Lucas  V.  Provinen,  130  730,  57  So.  1;  Rude  v.  Marshall, 
Cal.  270,  62  Pac.  509;  French  v.  54  Mont.  27,  166  Pac.  298;  Baty 
Pearce,  8  Conn.  439,  21  "Am.  Dec.  v.  Elrod,  66  Neb.  735,  92  N.  W. 
680;  Krause  v.  Nolte,  217  111.  1032,  97  N.  W.  343;  Zweimer  v. 
298,  3  Ann.  Cas.  1061,  75  N.  E.  Vest,  96  Neb.  399,  147  N.  W. 
362  (semble);  Daily  v.  Boudreau,  1129;  Crary  v.  Goodman,  22  N. 
231  111.  228,  83  N.  E.  218  (sem-  Y.  170;  Yetzer  v.  Thoman,  17i 
ble);  Rennert  v.  Shirk,  163  Ind.  Ohio  St.  130,  91  Am.  Dec.  122; 
542,  72  N.  E.  546;  Dowell  v.  Dil-  Parker  v.  Wolf,  69  Ore.  446,  138 
Ion,  178  Ky.  531,  199  S.  W.  6;  Pac.  463;  Miles  v.  Pennsylvania 
Jordon  v.  Riley,  178  Mass.  524,  Coal  Co.,  245  Pa.  94,  91  All.  211; 
60  N.  E.  7;  Greene  v.  Angle-  Erck  v.  Church,  87  Tenn.  575,  4 
mire,  77  Mich.  168,  43  N.  W.  L.  R.  A.  641,  11  S.  W.  794;  Wil- 
772;  Weeks  v.  Upton,  99  Minn.  liams  v.  Hewitt,  128  Tenn.  689, 
410,    109    N.    W.    828;    Stevens   v.  164    S.   W.    1198;    Burnell   v.   Ma- 


'^  505]  Adverse   Possessiox.  1947 

the  fact  that,  in  such  case,  the  possession  of  the  other's 
land  is  under  mistake,  has  been  regarded  as  frequently 
material,  and  a  distinction  is  asserted  to  the  effect  that, 
if  such  possession  up  to  the  boundary  as  located  is  with 
the  intention  of  claiming  title  to  that  extent,  even  though 
the  boundary  be  incorrect,  the  possession  is  adverse, 
while,  if  it  is  with  the  intention  of  claiming  title  to  that 
extent  only  if  the  boundary  is  correct,  the  possession  is 
not  adverse.-'^  The  decisions  of  a  particular  court  in 
this  regard  are  not  infrequently  lacking  in  entire  con- 
sistency, one  with  another,  and  occasionally  the  judicial 
discussion  of  the  subject  is  such  as  to  leave  us  somewhat 
in  the  dark  as  to  the  exact  position  of  the  court  on  the 
question. 

Though  the  courts  which  assert  the  possible  mate- 
riality of  mistake  as  to  the  boundary  line,  ordinarily  state 
that  w^hether  an  intention  to  claim  title  to  the  boundary 
as  located  in  spite  of  any  mistake  therein  is  the  im- 
portant consideration,  they  fail  to  tell  us  what  they 
mean  by  such  an  intention,  and  in  the  actual  discussion 

loney,    39    Vt.    579,    94    Am.    Dec.  106,    165    S.    W.    684;     Preble    v. 

358;  Wissinger  v.  Reed,  69  Wash.  Maine   Cent.    R.   Co.,   85   Me.    260, 

684,     125    Pac.     1030;     Mielke    v.  21  L.  R.  A.  829.  35  Am.  St.  Rep.' 

Dodge,   135   Wis.   388,    115    N.    W.  366,    27    Atl.    149;     Borneman    v. 

1099;   Ovig  v.  Morrison,  142  Wis.  Milliken,    116    Me.    76,    100    Atl. 

243,  125  N.  W.  449.     See  editorial  5;     Mulligan    v.    Fritts.    226    Mo. 

notes    9    Harv.    Law    Rev.    at   pp.  189,    125   S.   W.   1101;    Vanderbilt 

289,   467;    10   Columbia  Law   Rev.  v.    Chapman,    175    N.    C.    11.    !H 

at  p.  665;    11  Mich.  Law  Rev.  57.  S.    E.    70;j;     Dunnigan    v.    Wood, 

91.     Smith   V.   Bachus,   195   Ala.  58  Ore.  119,  112  Pac.  531;   Chance 

8,    70    So.    261;    Couch   v.   Adams,  v.    Branch,    58    Tex.    490;     Davis 

111  Ark.  604,  164  S.  W.  728:  v.  Owen,  107  Va.  283,  13  L.  R. 
Bossom  v.  Gillman,  70  Fla.  310,  A.  (N.  S.)  728,  58  S.  E.  581; 
70  So.  364;  Grube  v.  W^ells,  34  Christian  v.  Bulbeck,  120  Va.  74. 
Iowa,  148;  Keller  v.  Harrison,  90  S.  E.  661;  Shanski  v.  Novak. 
151  Iowa,  320,  Ann.  Cas.  1913A,  84  Wash.  39,  146  Pac.  160;  Mc- 
30,  128  N.  W.  851,  131  N.  W.  Cormick  v.  Sorenson,  58  Wash. 
53;  Edwards  v.  Fleming,  83  Kan.  107,  137  Am.  St.  Rop.  1047.  107 
653,    33    L.    R.    A.     (N.    S.)     923.  Pac.    1055;    Snell    v.    Steiling,    83 

112  Pac.   836;    Turner  v.   Morgan,      Wash.    248,   145   Pac.   466. 
158  Ky.  511,  52  L.  R.  A.    (N.  S.) 


]948  Eeal  Peoperty.  [§  505 

of  the  particular  case  they  not  infrequently  shift  the  in- 
quiry from  one  as  to  the  existence  of  an  intention  to 
claim  title  in  the  contingency  of  mistake  to  one  as  to 
whether  a  claim  of  title  was  actually  made  or  indicated 
during  the  period  of  possession.  An  intention  to  claim 
title  in  spite  of  a  mistake  in  the  location  of  the  bound- 
ary might  mean  an  intention  to  retain  possession  until 
legally  ejected,  even  though  convinced  of  the  mistake,  or 
it  might  mean  merely  an  intention  to  assert  a  right  to 
the  possession  although  relinquishing  possession  by  rea- 
son of  proof  of  mistake.  Probably  what  the  courts  have 
in  view  in  asserting  this  distinction  is  that  the  posses- 
sion is  not  adverse  as  regards  land  erroneously  in- 
cluded in  one's  possession  by  reason  of  a  mistake  in 
the  boundary  line,  provided  he  concedes  that  if  there  is 
any  such  land  he  has  a  mere  permissive  possession,  that 
he  holds  possession,  in  other  words,  in  subordination 
to  any  right  therein  on  the  part  of  the  adjoining  owner, 
while  his  possession  is  adverse  if  he  does  not  concede 
the  possibility  of  mistake,  and  thus  fails  to  recognize  any 
possibility  of  right  in  the  other.  So  regarded,  it  may 
be  questioned  whether  the  position  of  the  courts  as- 
serting the  possible  materiality  of  mistake  in  this  re- 
gard is  so  entirely  out  of  harmony  with  that  of  the 
courts  which  assert  its  immateriality  as  is  frequently 
assumed.  Even  the  latter  courts  would  hardly  regard 
one's  possession  of  land  enclosed  by  mistake  as  ad- 
verse, if  the  possessor  explicitly  acknowledges  to  the 
rightful  owner  that  any  such  land  is  held  by  him  in 
subordination  to  any  right  in  the  latter  and  their  as- 
sertion of  the  immateriality  of  mistake  in  this  regard 
appears  to  mean  no  more  than  that  the  fact  of  mistake 
is  not  a  basis  for  inferring  such  an  acknowledgment  on 
the  part  of  the  possessor  that  he  holds  in  subordination 
to  any  possible  rights  in  the  true  owner.  But  this  ap- 
l)ears  to  involve  the  same  position  as  that  held  by  the 
courts  which  assert  the  possible  materiality  of  the  mis- 


§  505] 


Adverse    Possession. 


1949 


take,  in  so  far  as  they  recognize"-  a  presuniiition  of  in- 
tention to  claim  title  regardless  of  the  mistake,  that  is, 
a  presumption  that,  in  spite  of  the  mistake,  the  posses- 
sion is  adverse.  Adopting  this  view,  it  is  only  in  so  far 
as  the  courts,  which  assert  the  possible  materiality  of 
the  mistake,  recognize  a  contrary  presumption,"^  of  an 
intention  on  the  part  of  the  wrongful  possessor  not  to 
claim  title  if  he  is  mistaken  as  to  the  boundary,  tliat 
the  assertion  of  the  materiality  of  mistake  as  to  bound- 
ary becomes  of  substantial  importance.  That  the  pre- 
sumption is  properly  in  favor  of  the  adverse  or  hostile 
character  of  the  possession  rather  than  against  it  has 
been  previously  argued,"^  but  whatever  presumi)tion  in 
this  regard  may  be  recognized,  the  introduction  of  the 
element  of  mistake  in  the  discussion  of  the  question  of 
adverse  possession  is,  it  is  submitted,  unnecessary  and 
undesirable.  In  no  case  except  in  that  of  a  mistake  as 
to  boundary  has  the  element  of  mistake  been  regarded 
as  having  any  significance,^^  and  there  is  no  reason  foi' 


92.  As  in  Huffman  v.  White, 
90  Ala.  354,  7  So.  816;  Couch  v. 
Adams,  111  Ark.  604,  164  S.  W. 
728;  Heath  v.  Kirkpatrick,  48 
Iowa,  78;  Zimmerman  v.  Ginter, 
69  Kan.  331,  63  Pac.  657;  Patter- 
son V.  Hollis,  90  Kan.  655,  Ann. 
Cas.  1915B,  725,  136  Pac.  258: 
Turner  v.  Morgan,  158  Ky.  511,  52 
L.  R.  A.  (N.  S.)  106,  165  S.  W. 
684  (semble)  ;  Goltermann  v. 
Schiermeyer,  111  Mo.  404.  19  S. 
W.  484.  20  S.  W.  161;  Mangold 
V.  Phillips,  — Mo.— ,  186  S.  W.  988: 
Nichols  V.  Tallman,  Mo.,  189  S. 
W.  1184;  Pearson  v.  Dryden. 
28  Or.  350,  43  Paf.  166.  See 
ante,  §  295. 

93.  As  in  Lecroix  v.  Malone, 
157  Ala.  434,  47  So.  725;  Jahnke 
V.  Seydel,  178  Iowa,  363,  159  N. 
W.  986;  Shanline  v.  Wiltsie.  70 
Kan.    177,    3    Ann.    Cas.    140.    7S 

2  R.  P.— 48 


Pac.  436;  Davis  v.  Alexander, 
—Mo.—,  183  S.  W.  563;  Ware  v. 
Cheek,  Mo.,  201  S.  W.  847;  Chris- 
tian V.  Bulbeck,  120  Va.  74.  90  S. 
E.  661.  See  Hornsby  v.  Tucker. 
180   Ala.    418.    61    So.    928. 

94.  Ante.  §  503,  note  54. 

95.  "If  possession  through  mis- 
take were  held  not  to  be  adverse, 
very  little  room  would  be  left  for 
the  statute  of  limitation,  for  al 
most  every  man  who  buys  land 
under  a  bad  title  labors  under 
the  mistaken  idea  that  his  dee^l 
is  good  and  effectual."  2  Deni- 
bitz.  Land  Titles,  1397.  "Adopt 
the  rule  that  an  entry  and  pos- 
session under  a  claim  of  right, 
if  through  misiakf.  does  not  con- 
stitute an  adverse  possession. 
*  ♦  *  the  in(|uiry  no  longer 
is  whether  visible  possession, 
with  the  intent  to  posseess,  under 


1950  Eeal  Pbopebty.  [§  506 

attributing  greater  weight  thereto  when  the  mistake  is 
as  to  the  proper  location  of  a  boundary  than  when  it 
is  a  mistake  as  to  the  title  to  all  the  land  wrongfully 
possessed.  And  to  introduce  the  element  of  mistake, 
and  then  limit  its  significance  by  an  inquiry  as  to  the 
intention  which  the  possessor  may  have  as  to  his  course 
of  action  in  case  there  should  be  a  mistake,  an  intention 
which  has  ordinarily  no  existence  whatsoever,  is  cal- 
culated only  to  cause  confusion  in  the  minds  of  the  jury, 
without,  it  is  conceived,  any  compensating  advantage. 

In  case  a  temporary  boundary  line  is  located  by 
agreement  between  the  adjoining  owners,  with  the  un- 
derstanding that  they  shall  occupy  with  reference  there- 
to until  the  proper  Hue  is  ascertained,  the  possession  of 
one  beyond  the  proper  line,  in  accordance  with  such 
temporary  location,  has  been  regarded  as  not  adverse 
to  the  other.'^"  His  possession  in  such  case  is  in  effect 
permissive,  and  involves  a  recognition  of  the  other's 
title  to  the  extent  of  that  title. 

§  506.  Necessity  of  right  of  action.  The  purpose 
of  the  statutes  of  limitation  is  to  debar  one  of  his  right 
to  assert  his  claim  when,  having  the  powder  to  assert 
such  claim,  he  has  failed  to  do  so  for  the  period  named. 
Consequently  the  statutes  do  not  commence  to  run  as 
against  a  particular  person  until  a  right  of  entry  or 
action  accrues  to  him.  So,  as  against  one  who  has  a 
remainder  upon  an  estate  for  life,  the  statute  does  not 

a  claim  of  right,  and  to  use  and  v.   Moreland,    26    Iowa,    96;    Mur- 

enjoy  as  one's  own,  is  a  disseisin,  phy  v.  Comm.,  187  Mass.  361,   73 

but     from    this    plain    and    easy  N.   E.   524;    Bunce  v.   Bidwell,   43 

standard   of  iproof   we   are  to   de-  Mich.  542,  5  N.  W.  1023;    Majors 

part,    and    the    invisible    motives  v.   Rice,   57   Mo.   384;    Jackson   v. 

of  the  mind  are  to  be  explored."  Vermilyea,    6    Cow.    677;    Bryson 

French    v.    Pearce,    8    Conn.    439,  v.   Slagle,   44   N.  C.   449;    Massen- 

per  Hosmer,  C.  J.  gill  v.  Boyles,  11  Humph.  (Tenn.) 

96.     Smith   v.  Keyser,   115   Ala.  112;   Texas  Land  Co.  v.  Williams, 

455,  22  So.  149;   Peters  v.  Gracia,  51   Tex.   51;    BurneU  v.   Maloney, 

110  Cal.  89,  42  Pac.  455;    Hassett  39   Vt.   579,   94   Am.    Dec.   358. 
V.  Ridgely,  49  111.  197;   McNamee 


§  506]  Adverse  Possession.  1951 

ordinarily  begin  to  run  in  favor  of  a  third  person,  who 
takes  wrongful  possession  during  the  life  tenancy,  until 
the  termination  of  the  estate  for  life,*^^  and,  presumably, 
as  against  one  who  has  a  reversion  upon  an  estate 
for  years,  the  statute  does  not  begin  to  run,  in  favor  of 
one  who  takes  possession  during  the  existence  of  the 
estate  for  years,  until  the  termination  of  such  estate.^** 
Nor,  it  seems,  does  the  fact  that  the  reversioner  or  re- 
mainderman has  a  right  of  entry  for  a  forfeiture  be- 
fore the  normal  expiration  of  the  particular  estate 
cause  the  statute  to  run  as  against  him  before  such  ex- 
piration.^'' In  one  or  two  states,  however,  the  fact  that 
the  remainderman  is  by  statute  enabled  to  maintain  a 
suit  to  quiet  title  even  before  the  death  of  the  life  tenant 
is  regarded  as  causing  the  statute  to  run  as  against  him 
in  favor  of  a  wrongful  possessor,  immediately  upon  his 
acquisition  of  knowledge  of  such  wrongful  possession.^ 
If  the  i^articular  estate  for  life  or  for  years  is  vol- 
untarily created  after  the  statute  has  begun  to  run,  it 

97.     Angell,  Limitations,   §   371,  Childers  v.   Bumgarner,  53   N.   C. 

et    seq.;    Rosenau     v.     Childress,  297;    Davis  v.  Dickson,  92  Pa.  St. 

Ill    Ala.    214,    20    So.    95;    Ogden  365;   Moseley  v.  Hankinson,  25  S. 

V.  Ogden,  60  Ark.  70,  46  Am.   St.  C.    519;    Carver    v.    Maxwell,    110 

Rep.    151,    28    S.    W.    796;    Ander-  Tenn.  75,  71  S.  W.  752;  Mansfield 

son  V.  Northrop,   30   Fla.   612,   12  v.    Neff,    43    Utah,    258,    134    Pac. 

So.    318;    Bagley   v.    Kennedy,    81  1160. 

Ga.    721,    8    S.    E.    742;    Orthwein  98.     Potrero    Nuevo    Land    Co. 

v.   Thomas,    127   111.    554,    11   Am.  v.  All  Persons,  29  Cal.  App.  743. 

St.  Rep.   159,   4   L.   R.  A.  434,   13  156    Pac.    876;    Orrell    v.    Madox. 

N.  E.  564,  21  N.  E.  430;    Mettler  :J    Cruise,    Dig.    tit.    31,    ch.    2,    § 

V.    Miller,    129    lU.    630,    22    N.    E.  30.      That    the    statute    begins    to 

529;    Williams    v.    McClanahaa,    3  run  immediately  on  expiration  of 

Mete.  (Ky.)  420;  Pratt  v.  Church-  the    lease,    though    it    is    renewed, 

ill,    42    Me.    471;    Wallingford    v.  see    Gartlan    v.    C.    H.    Hooper    & 

Hearl,   15   Mass.   471;    Lindley  v.  Co.,    —Cal.—,    170   Pac.    1115. 
Groff,  37  Minn.  338,  34  N.  W.  26;  99.     Doe     v.    Danvers.    7     East 

Watkins  v.  Green,  101  Mich.  493,  299;    Gwynn    v.    .Tones,    2    Gill.    & 

60   N.  W.   44;    Reed  v.  Lowe,  163  J.     (Md.)     173. 
Mo.  519,  85  Am.  St.  Rep.  578,  63  1.     Marray      v.      Quigley.      11«« 

S.  W.   687;    Pinckney  v.  Burrage.  Iowa.  6.   97  Am.  St.   Uep.  276.  92 

31  N.  J.  L.  21;    Jackson  v.  .John-  N.   W.   869;    Crl.swell    v.   ^risweli. 

son,  5  Cow.  74,  15  Am.  Dec.  433;  101  Neb.  349,  163  N.  W.  303. 


1952  Eeal  Property.  [§  506 

will  continue  to  run,  as  against  the  reversioner  or  re- 
mainderman as  well  as  against  the  particular  tenant.- 
That  is,  an  owner  in  fee  against  whom  the  statute  has 
commenced  to  run  cannot  interrupt  its  running  by  creat- 
ing a  particular  estate,  either  with  or  wdthoat  a  re- 
mainder thereon. 

Applying  the  principle  that  the  statute  does  not 
run  against  one  who  has  no  right  of  entry  or  action,  it 
has  been  decided  that  if,  after  the  adverse  possession 
has  begun,  the  rightful  owner,  a  married  woman,  dies, 
and  her  husband  has  then  an  estate  for  life,  the  statute 
does  not  run  as  against  the  woman's  heirs  during  the 
existence  of  the  life  estate.-^ 

In  states  in  which  an  estate  in  fee  tail  is  still  recog- 
nized, since  the  reversioner  or  remainderman  on  the 
estate  in  fee  tail  has  no  right  of  entry  or  action  until 
the  failure  of  the  designated  heirs  of  the  body,  the  stat- 
ute of  limitations  cannot,  in  theory,  run  as  against  him 
until  then.  The  English  statute  of  limitations  now  in 
force  provides  in  effect  that  after  the  statute  shall  have 
run  as  against  the  tenant  in  tail,  it  shall  be  regarded  as 
having  also  run  against  alb  persons  whom  he  might  have 
barred  by  conveyance  or  otherwise,  but  before  this  stat- 
ute was  passed,  it  was  recognized  that  ''while  posses- 
sion adverse  to  a  tenant  in  tail  told  against  the  issue  in 
tail,  who  claimed  in  right  of  the  same  estate,^  such  pos- 
session, though  protracted  for  centuries,  went  for  no- 

2.  Hubbard  v.  Swofford  Bros.  616,  62  L.  R.  A.  562,  44  S.  E. 
Dry  Goods  Co.,  209  Mo.  495,  123  508.  A  contrary  view  is  asserted 
Am.  St.  Rep.  488  ,108  S.  W.  15;  in  Beattie  v.  Stewart,  154  111. 
Sutton  V.  Clark,  59  S.  C.  440,  82  273,  40  N.  E.  340.  See  also 
Am.  St.  Rep.  848,  38  S.  E.  150;  Henry  v.  Carson,  59  Pa.  St.  207. 
Stackpoole  v.  Stackpoole,  4  Dr.  4.  That  it  bars  such  issue 
&  War.  at  p.  347;  1  Hayes,  Con-  see  Tolson  v.  Kaye,  3  Brod.  & 
veyancing,   257.  Bing.   217;    Croxall  v.   Shererd,   5 

3.  Jackson  v.  Johnson,  5  Cowen  Wall.  (U.  S.)  268,  18  L.  Ed.  572; 
(N.  Y.)  74,  15  Am.  Dec.  434,  Inman  v.  Barnes,  2  GaU.  315,  13 
followed  in  Jackson  v.  Mancius,  Fed.  Cas.  No.  7048;  Martindale 
2  Wend.  (N.  Y.)  369;  McNeely  v.  Troup,  3  Harr.  &  McH.  244; 
V.    South    Penn.    Oil,    52    W.    Va.  Wickes    v.    Wickes,    98    Md.    307, 


§  506]  Adverse   Possession.  1953 

thing  as  against  the  remainderman  or  reversioner,  who 
had  a  substantive  right,  which  did  not  accrue  until  fail- 
ure of  the  issue  in  tail."^  The  matter  is  of  little  practical 
importance  in  this  country,  by  reason  not  only  of  the 
small  number  of  states  in  which  estates  in  fee  tail  are 
recognized,  and  the  rarity  of  their  occurrence  even  in 
such  states,  but  also  of  the  fact  that  the  reversioner  or 
remainderman  would  ordinarily  be  bjirred  by  a  convey- 
ance by  the  first  tenant  in  tail. 

In  so  far  as  the  government  may  be  by  statute  lia- 
ble to  suit,'''  or  as  the  rightful  owner  can,  by  legal  pro- 
ceedings against  the  agents  of  the  government,  assei-t 
his  right  of  pos.session,'^  the  statutory  bar  may  run  in 
favor  of  the  government,  while,  it  would  seem,  it  cannot 
run  in  absence  of  such  a  right  of  action  in  his  favor. 
Therie  are  several  cases  in  which  the  right  of  the  state 
to  acquire  title  under  the  statute  of  limitations  is  rec- 
ognized, without  any  reference  being  made  to  the  ques- 
tion of  the  ability  of  the  rightful  possessor  to  enforce 
his  claim,^  and  these  must,  it  seems,  ordinarily  be  up- 
held on  the  theory  that  there  was  a  right  of  action 
against  the  agents  of  the  state  in  possession. 

Bar  of  cestui  que  trust.     There  is  one  case  in 

which  a  person  may  be  barred  by  the  adverse  jiosses- 
sion  of  another  although  he  has  no  riglit  of  action    or 

56    Atl.    1017;     Baldridge    v.    Mc-  454.     See  editorial  note  17   Harv. 

Farland,     26    Pa.    338     (semble);  Law   Rev.    55. 

Dow  V.  Warren,  6  Mass.  328.  7.     Stanley  v.  Schwalby.  147  V. 

5.  1  Hayes,  Conveyancing  (5th  S.  508,  37  L.  Ed.  2ri9;  E]!  Paso 
Ed.),  258.  See  Angell,  Limita-  v.  Ft.  Dearborn  Nat.  Bank.  96 
lions,    §    361,    quoting    3    Cruise's  Tex.  496,  74   S.  W.  21. 

Dig.    tit.    31,    ch.    2,    §    13.      The  8.     Atty.     Gen.     v.     Ellis.     198 

case  of  Bassett  v.  Hawk,  118  Pa.  Mass.    91,    15    L.    R.    A.    (N.    S.) 

94,    11     Atl.    802,     to    the    effect  1120,    84    N.    E.    430;    Eldridge    v. 

that    the    reversioner    or    remain-  Binghamptou,    120    N.    Y.    309,    24 

derman  is  barred,  is  based  on  the  N.    E.    262;    Birdsell    v.    ("ary,    66 

express    provision    of    the    act    of  How.    Pr.    358;    Parker   v.    Soiith- 

1859.  wirk,   6   Watts    (Pa.)    377. 

6.  Baxter     v.     State,     10     Wis. 


1954  Keal  Peoperty.  [§  506 

entry,  that  of  a  cestui  que  trust.  If  the  possession  is 
adverse  to  the  trustee,  so  as  to  bar  his  right  to  recover 
possession  after  the  statutory  period,  the  cestui  que  trust 
is  also  barred.''  This  rule,  that  the  cestui  que  trust  must 
suffer  for  the  negligence  of  the  trustee  in  failing  to  sue, 
has  been  in  terms  based  on  the  consideration  that  were 
the  rule  otherwise,  the  cestui,  having  no  right  of  action, 
would  never  be  barred  by  the  statute. ^^  In  further 
justification  of  the  rule  reference  has  been  made  to  the 
theory^^  that  the  cestui  que  trust  has,  properly  speaking, 
merely  a  right  in  personam  against  the  trustee  and  not 
an  actual  estate  in  the  land,  and  that  as  he  is  not  liable 
personally,  as  is  a  legal  owner,  upon  an  obligation  at- 
taching to  the  land,  such  as  that  on  a  covenant  running 
therewith,  so  he  is  not  entitled  to  protection  as  is  a 
legal  owner.^2 

The  bar  of  the  statute  being  based  on  the  existence 
of  a  right  of  action  in  favor  of  the  trustee,  the  fact  that 
the  cestui  que  trust  is  under  disability,  such  as  infancy 

9.  Elmendorf  v.  Taylor,  10  of  the  trust  did  not  accept  or 
Wheat.  152,  6  L.  Ed.  360;  Cruse  qualify,  and  hence  there  was  no 
V.  Kidd,  195  Ala.  22,  70  So.  166;  person  to  bring  suit.  The  deci- 
East  Rome  Town  Co.  v.  Cothran,  sion  has  been  criticized  on  the 
81  Ga.  359,  8  S.  E.  737;  Hall  v.  theory  that  the  heir  or  personal 
Waterman,  220  111.  569,  77  N.  representative  of  the  creator  of 
E.  142,  4  L.  R.  A.  (N.  S.)  776;  the  trust  held  the  legal  title  and 
Barclay  v.  Goodloe,  83  Ky.  493;  could  have  brought  suit  on  be- 
Stoll  V.  Smith,  129  Md.  164,  98  half  of  the  cestui.  See  editorial 
Atl.  530;  Walton  v.  Ketchum,  note,  17  Columbia  Law  Rev.  568. 
147  Mo.  209,  48  S.  W.  924;  Ben-  10.  See  the  language  of  Lord 
nett  V.  Garlock,  79  N.  Y.  302,  35  Hardwicke  in  Llewellyn  v.  Mack- 
Am.  Rep.  517;  Cameron  v.  Hicks,  worth,  2  Eq.  Cas.  Abr.  579,  Barn. 
141  N.  Car.  21,  7  L.  R.  A.  (N.  S.)  445,  quoted  2  Perry,  Trusts,  § 
407,  53  S.  E.  728;  Williams  v.  858. 
Otey,  8  Humph.  (Tenn.)  563,  47  11.  Ante,  §  103(b). 
Am.  Dec.  632;  Collins  v.  McCarty,  12.  "If  a  man  wants  complete 
68  Tex.  150,  2  Am.  St.  Rep.  475,  legal  protection,  let  him  acquire 
3  S.  W.  730.  In  Ayer  v.  Chap-  a  true  proprietary  right,  with 
man,  145  Ga.  608,  91  S.  E.  548,  its  incident  liabilities,  for  him- 
it  was  held  that  the  statute  did  self."  T.  Cyprian  Williams,  Esq. 
not  run  against  the  cestui  when  in  51  Solictor's  Journal,  at  p. 
the  trustee  named  in  ihe  creation  156. 


§  507]  Adverse  Possession.  1955 

or  coverture,  is  immaterial,^^  as  is  the  fact  that  the 
cestui  que  trust  has  an  equitable  estate  in  remainder 
only,  the  legal  title  in  fee  being  in  the  trustee.^* 

§  507.  Interruption  of  running  of  statute.  It  not 
infrequently  occurs  that,  after  the  statute  of  limitations 
has  begun  to  run  against  the  right  to  recover  land,  and 
before  it  has  run  for  the  period  named  therein,  it,  for 
some  reason,  ceases  to  run.  Since  it  runs  by  reason  of 
the  failure  to  assert  one's  right  to  the  land  as  against 
one  in  possession  thereof  whose  possession  is  adverse 
to  the  rightful  owner,  one  would  expect  it  to  cease  to 
run  either  upon  the  owner's  assertion  of  the  riglit  to 
the  land,  upon  the  cessation  of  the  possession,  or  upon 
the  cessation  of  the  hostile  character  of  the  possession. 
We  will  consider,  in  the  above  order,  the  operation  in 
this  regard  of  these  various  classes  of  circumstances. 

By  entry  or  action.     One  whose  land  is  in  tlie 


wrongful  possession  of  another  may  assert  his  right  to 
the  land  either  by  entry  or  by  action.  It  is  well  recog- 
nized that  the  running  of  the  statute  is  interrupted  })y 
the  owner's  entry  on  the  land,  if,  and  only  if,  this  is 
made  openly  and  under  claim  of  right,  with  a  clearly 

13.  Molton  V.  Henderson,  62  Rabon.  142  Ga.  1B3,  82  S.  E. 
Ala.  426;  Patchett  v.  Pac.  Coast  544;  Waterman  v.  Waterman 
Ry.,  100  Cal.  505,  35  Pac.  73;  Hall,  220  111.  569;  Edwards  v. 
Salter  v.  Salter,  80  Ga.  178,  12  Woolfolk,  17  B.  Mon.  (Ky.)  376; 
Am.  St.  Rep.  249,  4  S.  E.  391;  Ewing  v.  Shanahan,  113  Mo.  18S, 
Barclay  v.  Goodloe,  83  Ky.  493;  20  S.  W.  1065;  King  v.  Rhew. 
Crook  V.  Glenn,  30  Md.  71;  Ewing  108  N.  C.  696,  23  Am.  St.  Rop. 
V.  Shanahan,  113  Mo.  188,  20  S.  76,  13  S.  E.  174;  Watkins  v. 
W.  1065;  Thompson  v.  Carrai-  Specht,  7  Cold.  (Tenn.)  585. 
chael,  122  Pa.  St.  478, 15  Atl.  867;  Obviously,  if  the  trustee  has 
Williams  v.  Otey,  8  Humph.  only  a  life  estate,  the  statute 
(Tenn.)  563,  47  Am.  Dec.  632;  does  not  run  against  the  legal 
Collins  V.  McCarty,  68  Tex.  150,  remainderman.  East  Rome  Town 
2  Am.  St.  Rep.  475,  3  S.  W.  730.  Co.    v.    Cothran,    81    Ga.    359,    S 

14.  Cushman    v.    Coleman,    92  S.     E.     737;      Ewin     v.     Llndsey, 
Ga.   772,   19    S.   E.   46;    McLain   v.  (Tenn.)    58   S.  W.  388. 


1956 


Eeal  Property. 


[§  507 


indicated  purpose  of  taking  ijossession.^^^  In  several 
states,  however,  such  an  effect  has  been  denied  to  a 
forcible  entry,  at  least  when  not  followed  by  continuous 
possession,^''  and  in  some  states  there  is  a  statutory  pro- 
vision restricting  the  operation  of  an  entry  as  an  inter- 
ruption of  the  adverse  possession,  as  by  requiring  it  to 
be  followed  by  possession  for  a  certain  time,  or  by  an 
action  of  ejectment,  and  occasionally  the  statute  ex- 
pressly deprives  the  entry  of  any  such  effect.^' 

The  bringing  of  an  action  by  the  true  owner  to  re- 
cover the  possession,  if  followed  both  by  a  judgment  in 
his  favor  and  the  recovery  of  possession  thereunder, 
interrupts  the  running  of  the  statute,^^  and  such  inter- 


15.  Doe  V.  Clayton,  81  Ala. 
391,  2  So.  24;  Burrows  v.  Gal- 
lup, 32  Conn.  493,  87  Am.  Dec. 
186;  Brett  v.  Farr,  66  Iowa,  684, 
24  N.  W.  275;  Batchelder  v.  Rob- 
bins,  93  Me.  579,  45  Atl.  837; 
Wickes  V.  Wlckes,  98  Md.  307, 
56  Atl.  1017;  Boweu  v.  Guild,  130 
Mass.  121;  Musser-Sauntry  Land, 
Logging  &  Mfg.  Co.  v.  T'ozer,  56 
Minn.  443,  57  N.  W.  1072;  Camp- 
bell V.  Wallace.  12  N.  H.  362.  37 
Am.  Dec.  219;^  Landon  v.  Town- 
shend,  129  N.  V.  166,  29  N.  E.  71; 
Altemus  v.  Campbell,  9  Watts 
(Pa.)  28,  34  Am.  Dec.  494;  Evitts 
V.  Roth,  61  Tex.  81;  Illinois  Steel 
Co.  V.  Budzisz,  115  Wis.  68,  90  N. 
W.    1019. 

The  owner  may  enter  by  an 
agent  as  well  as  in  person. 
Batchelder  v.,  Robbins,  93  Me.  579, 
45  Atl.  837;  Johnson  v.  Fitz- 
george,-  50  N.  J.  L.  470,  14  Atl. 
762;  Ingersoll  v.  Lewis,  11  Pa. 
212,  51  Am.  Dec.  536;  Camp  v. 
Camp,  88  Vt.  119,  92  Atl.  12; 
Illinois  Steel  Co.  v.  Budzisz,  115 
Wis.  68,  90  N.  W.  1019. 

16.  Gould  V.  Carr.  33  Fla.  523, 


24  L.  R.  A.  130,  15  So.  259;  Bella 
V.  Scholte,  24  Iowa,  283;  Men- 
denhall  v.  Price,  88  Iowa,  203, 
55  N.  W.  321  (semble);  Fergu- 
son V.  Bartholomew,  67  Mo.  212; 
Norvell  v.  Gray,  1  Swan  (Tenn.) 
96.  Contra,  San  Francisco  v. 
Fulde,  37  Cal.  349,  99  Am.  Dec. 
278.  In  Illinois  an  entry  has 
been  regarded  as  forcible  for  this 
purpose  if  against  the  will  of 
the  person  in  possession.  Bug- 
ner  v.  Chicago  Title  &  Trust  Co., 
280    111.    620,   117   N.    E.   711. 

17.  See  Place  v.  Place,  l;59 
Mich.  509,  102  N.  W.  996;  Doug- 
las V.  Irvine,  126  Pa.  643,  17 
Atl.  802;  Cobb  v.  Robertson,  99 
Tex.  138,  122  Am.  St.  Rep.  609, 
86  S.  W.  746,  87  S.  W.  1148. 
.  18.  Moore  v.  Greene,  19  How. 
f!U.  S.)  69.  15  L.  Ed.  533;  Bishop 
V.  Truett,  85  Ala.  376;  McGrath 
V.  Wallace,  85  Cal.  622;  Smith  v. 
Hornback,  4  Litt.  (Ky.)  232,  14 
Am.  Dec.  122;  Barrell  v.  Title 
Guarantee  &  Trust  Co.,  27  Ore. 
77,  39  Pac.  992;  Potts  v.  Wright, 
82    Pa.   498. 


§  507] 


Adverse   Possession. 


lii.")' 


ruption  occurs,  it  has  been  decided,  at  the  time  of  the 
bringing  of  the  action. ^'^  The  bringing  of  an  action, 
however,  which  results  unsuccessfully  to  plaintiff,  does 
not  interrupt  it.^*^  There  are  a  number  of  decisions  to 
the  effect  that  even  though  a  judgment  is  rendered  for 
plaintiff  in  such  action,  the  statute  does  not  cease  to  run 
unless  there  is  a  change  of  possession  in  accordance 
with  the  judgment,-^  while  tliere  are  other  decisions  to 
the  contrary. 2^ 

In  some  of  the  earlier  cases,- •  the  asserted  ineffec- 
tiveness in  this  regard  of  a  judgment,  not  followed  by 
a  change  of  possession  in  accordance  therewith,  was 
based  upon  the  consideration  that  a  judgment  in  eject- 
ment decided  only  that  the  plaintiff'  was  entitled  to  pos- 
session during  the  term  named  in  the  fictitious  demise, 


19.  Butler  v.  Secrist,  92  Neb. 
506,  138  N.  W.  749;  Barrell  v. 
Title  Guarantee  Co.,  27  Ore.  77, 
39  Pac.  992;  Chicago  &  N.  W. 
R.  Co.  V.  Jenkins,  103  111.  588; 
Dunn  V.  Miller,  75  Mo.  260;  Breon 
V.  Robrecht,  118  Cal.  469,  62  Am. 
St.  Rep.  247,  50  Pac.  689,  51  Pac. 
33;  Ball  v.  Lively,  1  Dana  (Ky.) 
60;    Beard  v.  Ryan,  78  Ala.  37. 

20.  Moore  v.  Greene,  19  How. 
(N.  Y.)  71;  Langford  v.  Poppe, 
56  Cal.  73;  Workman  v.  Guthrie, 
29  Pa.  St.  495,  72  Am.  Dec.  654; 
Snell  V.  Harrison,  131  Mo.  495, 
52  Am.  St.  Rep.  642,  32  S.  W. 
:M;  Nelson  v.  Triplett,  99  Va. 
421,  ."^g  S.  E.  150. 

21.  Bradford  v.  Wilson,  140 
Ala.  633,  37  So.  295;  Carpenter 
V.  Natoma,  etc.,  Water  Co.,  63 
Cal.  616;  Gould  v.  Carr,  33  Fla. 
523,  24  L.  R.  A.  130,  15  So.  259; 
O'Neal  V.  Boone,  53  111.  35; 
Forbes  v.  Caldwell,  39  Kan.  14,  17 
Pac.  478;  Smith  v.  Trabue,  1  Mc- 
Lean  (U.  S.)    87. 


22.  Snen  v.  Harrison,  131  Mo. 
495,  52  Am.  St.  Rep.  642,  32  S. 
W.  37,  overruling  Mabary  v. 
Dollarhide,  98  Mo.  204,  14  Am. 
St.  Rep.  639,  11  S.  W.  611; 
Rogers  v.  Johnson,  259  Mo.  17.!. 
168  S.  W.  613;  Perry  v.  Eagle 
Coal  Co.,  170  Ky.  824,  186  S.  W. 
875,  apparently  overruling  Mar- 
tin V.  Hall,.  152  Ky.  677,  153  S. 
W.  997;  Brolaskey  v.  McClain, 
61  Pa.  St.  166;  Wade  v.  Mc- 
Dougle,  59  W.  Va.  113,  52  S.  E. 
1026. 

A  like  view  has  been  taken  as 
to  the  effect  of  a  decree  for  a 
conveyance  (Gower  v.  Quinlan. 
40  Mich.  572)  and  a  decree  «iiiiet- 
ing  title  (Hintrager  v.  Smith,  89 
Iowa.  270,  56  N.  W.  456;  01)erein 
V.  Wells,  163  111.  101.  45  N.  E. 
294). 

23.  Kennedy  v.  Reynolds.  27 
Ala.  364;  Smith  v.  llornljuck.  4 
Litt.  233;  Jackson  v.  Ilavilaml. 
13   Johns.  229. 


1958  Real  Peoperty.  [§  507 

and  was  consequently  not  conclusive  as  to  the  title  gen- 
erally,^^ but  this  consideration  has  ceased  to  be  effective 
Avith  the  change  in  the  nature  of  the  action.  And  the 
view  that  a  change  of  possession  is  necessary  can  be 
based  only  on  the  theory  that,  in  the  absence  of  a  change 
of  possession,  the  running  of  the  statute  is  not  inter- 
rupted unless  tlie  possession  loses  its  hostile  character, 
and  that  it  does  not  lose  such  character  merely  as  a 
result  of  the  rendition  of  a  judgment  in  favor  of  the 
rightful  owner.  It  is  said  on  the  other  hand,  that  the 
judgment  does  have  the  effect  of  depriving  the  posses- 
sion of  its  adverse  character,  for  the  reason  that  it 
estops  the  defendant  therein  from  asserting  that  he 
holds  under  claim  of  title.^"  But  conceding  that  a  hold- 
ing under  claim  of  title  is  necessary  to  put  the  statute 
in  motion,^*'  it  is  by  no  means  clear  that  a  judoment  in 
ejectment  against  the  wrongful  possessor  should  prop- 
erly estop  him  from  the  assertion  of  such  a  holding.  It 
estops  him  from  asserting  title  in  subsequent  litigation, 
but  he  is  at  liberty,  it  would  seem,  after  the  rendition 
of  the  judgment,  as  before,  to  assert  in  conversation  or 
otherwise,  that  he  claims  title  to  the  property,  and  hav- 
ing made  such  assertion,  to  show,  in  subsequent  litiga- 
tion, that  he  did  so.  The  bringing  of  an  action  by  the 
true  owner  to  assert  his  rights,  followed  by  the  recovery 
of  a  judgment  by  him,  without  any  actual  change  of  pos- 
session, might,  it  is  submitted,  be  regarded  as  effective 
to  stop  the  running  of  the  statute  against  him,  for  the 
reason  that  in  that  way  he  has  asserted,  in  the  most 
conclusive  manner  possible,  his  rights  in  the  land.  While 
his  failure  to  assert  his  rights  by  either  action  or  entry 
involves  laches  on  his  part,  it  does  not  seem  that  he 
should  be  regarded  as  guilty  of  laches,  and  made  to 
suffer  accordingly,  because,  after  asserting  his  rights 
by  an  action  brought  to  a  successful  conclusion,  he  fails 

24.     See    an   excellent   editorial  25.     9  Columbia  Law  Rev.  351. 

note    in    9    Columbia    Law    Rev.  26.    Ante,  §  504. 

at  p.  351. 


§  507]  Adverse  Possession.  1959 

to  follow  tJais  up  by  an  entry  on  the  land.  He  has  a 
right  to  assume,  after  judgment  in  his  favor,  and  in  the 
abs(?nce  of  anything  to  show  the  contrary,  that  defend- 
ant, in  retaining  possession,  is  doing  so  in  his  behalf, 
that  is,  in  accord  with  the  adjudication.-'^ 

By  cessation  of  possession.     Since  the  statute 


runs  against  the  rightful  owner  only  if  there  is  an  actual 
possession  of  the  land  by  another,  it  ceases  to  run  upon 
a  cessation  of  such  actual  possession,  an  interruption  of 
the  continuity  of  possession,  as  it  is  frequently  termed. 
If  such  an  interruption  occurs,  and  possession  is  there- 
after resumed,  the  limitation  period  commences  to  run 
only  from  the  time  of  such  resumption. ^^  Interruption 
of  continuity  of  possession  may  result  from  the  cessa- 
tion by  the  person  in  possession  of  his  exercise  of  acts 
of  possession  or  ownership  over  the  land,-^  but  the  mere 
fact  that  the  acts  of  possession  are  not  continuous,  or 
that  the  owner  does  not  continue  in  actual  occupancy, 
does  not  necessarily  show  an  interruption  of  the  posses- 
sion, this  depending  on  the  character  of  the  acts  neces- 
sary to  constitute  actual  possession,  the  intention  of  the 
possessor,  and  the  other  circumstances  of  the 
case.""     Nor  is  the  continuity  of  possession  interrn))tod 

27.  See  Sanford  v.  Herron,  161  83  Tex.  580.  19  S.  W.  136;  Illinois 
Mo.  176,  84  Am.  St.  Rep.  703,  Steel  Co.  v.  Budzisz,  115  Wis.  68, 
61  S.  W.   839.  90   N.   W.    1019. 

28.  Ross  V.  Goodwin,  88  Ala.  29.  Louisville  &  N.  R.  Co.  v. 
390,  6  So.  682;  Brown  v.  Hanauer,  Philyaw,  88  Ala.  264,  6  So.  837; 
48  Ark.  277,  3  S.  W.  27;  Town-  Sharp  v.  Johnson,  22  Ark.  79; 
send  V.  Edwards,  25  Fla.  582.  6  Clark  v.  White,  120  Ga.  957,  48 
So.  212;  Chicago  &  A.  R.  Co.  v.  S.  E.  357;  Downing  v.  Mays.  153 
Keegan,  185  111.  70,  56  N.  E.  1088;  111.  33,  46  Am.  St.  Rep.  896.  3S 
Steeple  v.  Downing.  60  Ind.  478;  N.  E.  620;  Nixon  v.  Porter.  38 
Logan  V.  Williams,  159  Ky.  412,  Miss.  401;  Barrell  v.  Title  Guar- 
167  S.  W.  124;  Armstrong  v.  antee  &  Trust  Co.  2.7  Ore.  77, 
Risteau's  Lessee,  5  Ind.  256,  59  39  Pac.  997;  Stephens  v.  Leach, 
Am.  Dec.  115;  Old  South  Soc.  19  Pa.  St  262;  Fitch  v  Beyer, 
V.    Walnwright,     156     Mass.     115,  51   Tex.   336. 

30   N.    E.    476;    Bliss   v.   Johnson,  30.     Beasloy  v.  Ilowoll.  117  Ala. 

94  N.  Y.  235;    Philipson  v.  Flynn,       499.    22    So.    989;    Aldrirh    Mining 


![)()() 


Real  Peoperty. 


[§  507 


by  the  entry  of  a  third  person  upon  the  land,  not  effect- 
ing an  ouster  of  the  person  previously  in  possession, 
such  an  entry  constituting  merely  a  trespass  upon  such 
person's  possession.^^ 

That  the  interruption  of  continuity  of  possession  is 
the  result  of  overwhelming  necessity,  such  as  the  sub- 
mersion of  the  property ,^^  sickness,''^  or  military  con- 
ditions,^^ appears'  to  be  immaterial  in  this  regard,  but 
when  the  cessation  of  occupation  is  temporary  merely, 
the  fact  that  it  is  obviously  the  result  of  such  necessity 
is  a  consideration  tending  to  show  that  the  legal  posses- 
sion is  nevertheless  continuing.'^ '^ 

By   cessation  of  hostility.     Since   the    statute 


runs  against  the  true  owner  in  favor  of  one  in  posses- 
sion only  when  such  possession  is  hostile  or  adverse,  it 
follows  that  if  the  possession,  although  otherwise  con- 
tinuous, ceases  to  be  hostile  or  adverse,  by  reason  of 


Co.  V.  Pearce,  192  Ala.  195,  68 
So.  900;  Botsford  v.  Eyraud,  148 
Cal.  431,  83  Pac.  1008;  Downing 
V.  Mayes,  153  111.  330,  46  Am.  St. 
Rep.  896,  38  N.  E.  620;  Butt  v. 
Houser  — (Ky.)—  188  S.  W.  628; 
McLellan  v.  McFadden,  114  Me. 
242,  95  Atl.  1025;  Ford  v.  Wil- 
son, 35  Miss.  490;  Hunter  v. 
Finnell,  193  Mo.  142,  91  S.  W. 
472;  Pease  v.  Whitney,  — N.  H. — , 
98  Atl.  62;  Cross  v.  Seaboard 
Air  Line  R.  Co.,  172  N.  C.  119, 
90  S.  E.  14;  Hughs  v.  Pickering, 
14  Pa.  St.  297;  Cathcart  v.  Mat- 
thews, 105  S.  C.  329,  89  S.  E. 
1021;  Langdon  v.  Templeton,  66 
Vt.  173,  28  Atl.  866;  Chase  v. 
Eddy,  88  Vt    235,  92  Atl.  99. 

31.  Chastang  v.  Chastang,  141 
Ala.  451,  109  Am.  St.  Rep.  45,  37 
So.  799;  Prouty  v.  Tilden,  164,  111. 
163,  45  N.  E.  445;  Martin  v. 
Hall,     152     Ky.     077,     L.     R.     A. 


1918A,  1041,  153  S.  W.  997;  Batch- 
elder  V.  Robbins,  95  Me.  59,  49 
Atl.  210;  Ballard  v.  Hansen,  33 
Neb.  861,  51  N.  W.  295;  Clark  v. 
Potter,  32  Ohio  St.  49;  Workman 
V.  Guthrie,  29  Pa.  495,  62  Am. 
Dec.  382;  Love  v.  Turner,  78  S. 
C.  513,  59  S.  E.  529;  Glover  v. 
Pfeuffer,  —Tex.  Civ.—,  163  S.  W. 
984;  Zeller  v.  Martin,  157  Wis. 
341,    147   N.   W.    371. 

32.  Western  v.  Flanagan,  120 
Mo.  61,  25  S.  W.  531.  S§e  2 
Columbia  Law  Rev.  562;  16  Har- 
vard Law  Rev.  224. 

33.  Taylor  v.  Dunn,  108  Tex. 
337,  193   S.  W.  663. 

34.  See  Holliday  v.  Cromwell, 
37    Tex.    437. 

35.  See  McColgan  v.  Langford, 
6  Lea  (Tenn.)  108,  116;  Robin- 
son V.  Nordman,  75  Ark.  593,  88 
S.  W.  592;  Thomas  v.  Spencer, 
66    Ore.    359,    133    Pac.    822, 


§  507 


Adverse  Possession. 


1961 


the  possessor's  recognition  of  the  title  of  the  rightful 
owner,  the  statute  thereupon  ceases  to  run.^^'  The  pos- 
session also  ceases  to  be  hostile  when  the  possessor  ac- 
quires the  right  of  possession,  by  a  conveyance  or  lease/*" 
In  other  words,  if  after  the  statute  has  commenced  to 
run,  the  person  in  possession  acquires  the  title  to  the 
land,  and  subsequently  disposes  thereof,  retaining  pos- 
session, the  statutory  period  must  be  figured  from  the 
time  of  such  separation  of  the  title  and  the  possession. 
There  are  occasional  decisions  or  dicta  to  the  effect  that 
the  possessor's  recognition  of  the  title  of  the  rightful 
owner  is  effective  for  the  purpose  of  negativing  the  ele- 
ment of  hostility  although  it  is  communicated,  not  to  the 
rightful  owner  himself,  but  to  some  third  person  or 
persons,"^  but  the  soundness  of  such  a  view  is,  it  is  sub- 
mitted, open  to  question.  One  who  takes  possession  of 
another's  land  without  permission  from  the  owner  is 
guilty  of  a  tort  regardless  of  the  fact  that  he  concedes 


36.  Russell  v.  Erwin,  38  Ala. 
44;  Trufant  v.  White,  99  Ala. 
526,  13  So.  83;  Vittitow  v.  Bur- 
nett, 112  Ark.  277,  165  S.  W. 
625;  Lovell  v.  Frost,  44  Cal.  471; 
McMahill  v.  Torrence,  163  111. 
277,  45  N.  E.  269;  Litchfield  v. 
Sewell,  97  Iowa,  247,  66  N.  W. 
104;  Pratt  v.  Ard,  63  Kan.  182, 
65  Pac.  255;  Ray  v.  Barker's 
Heirs,  1  B.  Mon.  (Ky.)  364; 
Vaughan  v.  Bacon,  15  Me.  455; 
Warren  v.  Bowdran,  156  Mass. 
280,  31  N.  E.  300;  City  of  St. 
Paul  V.  Chicago,  M.  &  St.  P.  R. 
Co.,  63  Minn.  330,  34  L.  R.  A. 
184,  63  N.  W.  267,  65  N.  W. 
649,  68  N.  W.  458;  Tomlinson  v. 
Lynch,  32  Mo.  160;  Stone  v. 
Kansas  City  &  W.  B.  R.  Co.,  261 
Mo.  61,  169  S.  W.  88;  Nebraska 
Ry.  Co.  V.  Culver,  35  Neb.  14:5, 
52  N.  W.  886;  Keneda  v.  Gardner, 
4   Hill     (N.   Y.)    464;    Williams   v. 


Scott,  122  N.  C.  545,  29  S.  E. 
877;  IngersoU  v.  Lewis,  11  Pa. 
St.  212,  51  Am.  Dec.  536;  Erskine 
V.  North,  14  Gratt.  (Va.)  60. 
Contra,  McAllister  v.  Hartzell,  60 
Ohio  St.  69. 

That  the  person  in  possession 
instituted  a  suit  for  specific  per- 
formance against  the  rightful 
owner  was  held  to  involve  an  ad- 
mission of  the  latter's  title.  Cen- 
tral Pac.  Ry.  Co.  v.  Tari)ey.— 
Utah—.    168   Pac.   554. 

37.  Patton  v.  Smith.  171  Mo. 
231,  71  S.  W.  187;  Joy  v.  I'ale- 
thorpe.  77  Ore.  552.  152  Pac.  230. 

38.  Chirago  etc.  R.  Co.  v.  Kee- 
gan.  185  111.  70.  56  N.  E.  1088; 
Patterson  v.  Reigle,  4  Pa.  201; 
Whitaker  v.  Thayer,  38  Tex.  Civ. 
537,  R6  S.  W.  364;  City  of  Clovo- 
liind  V.  Clevflund,  <"..  C.  &  Sf.  L. 
Ry.  Co.,  93  Fed.  113;  An<l  soc 
cases   cited   auir,    §    504    nolo   84; 


1962  Eeal  Property.  [§  507 

the  other's  title,  and  such  other  should  be  excused  from 
the  obligation  of  asserting  his  title  within  the  statutory 
period  only  when  the  possessor  acknowledges  his  title 
by  direct  communication,  and  the  latter  is  thereby  in- 
duced to  refrain  from  asserting  his  title. 

Effect   of  offer  to   purchase.     Whether,   in    a 

particular  case,  there  was  such  a  recognition  of  the 
rightful  title  as  to  change  the  character  of  the  posses- 
sion, would  seem  ordinarily  to  be  a  question  of  fact,  but 
the  courts  have  tended  to  discuss  it  as  a  matter  of  law, 
particularly  with  reference  to  the  question  whether  the 
person  in  possession  may  offer  to  purchase  from  the 
rightful  owner,  without  thereby  recognizing  the  latter 's 
title.  The  proper  distinction  would  seem  to  be  that  be- 
tween an  offer  to  purchase  the  land,  and  an  offer  to  pur- 
chase immunity  from  litigation,  and  that  such  is  the  dis- 
tinction is  recognized  in  a  number  of  cases.^^  In  some 
cases,  on  the  other  hand,  such  a  distinction  appears  to 
be  ignored,  and  an  offer  to  purchase  from  the  rightful 
owner  is  regarded  as  necessarily  involving  a  recogni- 
tion of  the  latter 's  title.* « 

Effect  of  contract  or   conveyance.     The   fact 

that  the  wrongful  possessor  actually  contracts  to  pur- 
see  also  Bryan  v.  Atwater,  5  Day.  St.  Rep.  978,  99  N.  W.  1027. 
181;  Bank  v.  Wilson,  10  Watts,  40.  Litchfield  v.  Sewell,  97 
261;  McAllister  v.  Hartzell,  60  Iowa,  247,  66  N.  W.  104;  Gay  v. 
Ohio  St.  69,  13  N.  E.  715.  Moffitt,  2  Bibb  (Ky.)  506,  5  Am. 
39.  Lovell  V.  Frost,  44  Cal.  Dec.  633;  Moore  v.  Moore,  21  Me. 
471;  Central  Pacific  R.  Ca.  v.  350;  Croze  v.  Quincy  Mining  Co., 
Mead.  63  Cal.  112;  Montgomery  199  Mich.  515,  165  N.  W.  786; 
&  Mullen  Lumber  Co.  v.  Quimby,  Jackson  v.  Britton,  4  Wend.  (N. 
164  Cal.  250,  128  Pac.  402;  Chapin  Y.)  507;  Truman  v.  Raybuck,  207 
V.  Hunt,  40  Mich.  595;  Walbrun  v.  Pa.  St.  357,  56  Atl.  944. 
Ballen,  68  Mo.  164;  Oldig  v.  Fisk,  That  such  an  offer  tends  to 
53  Neb.  156,  73  N.  W.  661  prove  that  the  possession  is  not 
(sembZe) ;  Chambers  v.  Bessent.  adverse,  see  Liggett  v.  Morgan, 
17  N.  Mex.  487,  134  Pac.  237;  98  Mo.  39,  11  S.  W.  241.  Alsup 
Headrick  v.  Fritts,  93  Tenn.  270,  v.  Stewart,  194  111.  595,  88  Am. 
24  S.  W.  11;  Meyer  v.  Hope,  101  St.  Rep.  169,  62  N.  E.  795; 
Wis.  123,  77  N.  W.  720;  Clithero  Zweibel  v.  Myers,  69  Neb.  294,95 
v.  Fenner,  122  Wis.  356,  106,  Am.  N.   W.   597. 


<§>  507]  Adverse  Possession.  1963 

chase  from  the  rightful  owner,  should  not,  it  is  con- 
ceived, any  more  than  should  his  offer  to  purchase,  bo 
considered  conclusive  of  his  recognition  of  the  latter 's 
title,  but  there  are  occasional  decisions  in  which  it  has 
been  apparently  so  regarded.^ ^  The  lanouage  of  the 
contract  may  of  course  show  such  recognition.^- 

If  the  person  in  wrongful  possession  actually  takes 
a  conveyance  from  the  true  owner,  he  will  oidinarily 
base  his  claim  upon  such  conveyance  rather  than  upon 
the  statute  of  limitations,  but  it  may  occur  that  the  con- 
veyance is  invalid,  or  that  it  covers  only  part  of  the 
property.  The  language  of  the  conveyance  may  no 
doubt  be  such  as  to  show  a  recognition  of  the  grantor's 
title,*^  but  apart  from  this,  it  seems  that  the  wrongful 
possessor's  acceptance  of  a  conveyance,  while  it  may  be 
evidence  of  his  recognition  of  the  grantor's  title,^'*  is 
not  conclusive  thereof."*^ 

Effect  of  taking  lease.     The  taking  of  a  lease 


from  the  true  owner  would  almost  necessarily,  it  seems, 
involve  a  recognition  of  the  latter 's  title,  since  the  lease 
cannot  well  be  regarded  as  acquired  merely  to  i)rotect 

41.  Olson  V.  Burk,  94  Minn.  Meyer  v.  Hope,  101  Wis.  123,  77 
456,  103  N.  W.  335;  Cluss  v.  N.  W.  720;  Elder  v.  McClaskey, 
Hackett,  127  Minn.  397,  149  N.  W.  70  Fed.  529,  17  C.  C.  A.  251.  But 
647;  Texas,  N.  0.  R.  Co.  v.  that  it  necessarily  interrupts  tbe 
Speights,  94  Tex.  350,  60  S.  W.  running  of  the  statute,  see  Jack- 
659.  son  V.   Sears,  10  Johns.      (N.   Y.) 

42.  Cahuac  v.  Cochrane,  41  Up.  435. 

Can.  Q.  B.  437.  That    the    acquistion    of    a    tax 

43.  As  in  Ingersoll  v.  Lewis,  title  does  not  interrupt  the  run- 
11  Pa.  St.  212,  51  Am.  Dec.  536.  ning  of  the  statute,  see  Hayes  v. 

44.  Price  v.  Greer,  89  Ark.  300,  Martin,  45  (^al.  559;  Mather  v. 
116   S.  W.   676,   118   S.  W.   1009.  Walsh.  107  Mo.  121,  17  S.  W.  755; 

45.  Ripley  v.  Miller,  165  Mich.  Griffith  v.  Smith,  27  Neb.  47.  42 
47,  52,  130  N.  W.  345,  Ann.  Cas.  N.  W.  749;  Zweibel  v.  Myers.  69 
1912C,  952;  Bryani  v.  Prewitt,  Nen).  294,  95  N.  W.  597;  Bannon 
132  Ky.  799,  117  S.  W.  343;  .John  v.  Brandon,  34  Pa.  263,  75  Am. 
L.  Roper  Lumber  Co.  v.  Richmond  Doc.  655;  Silverstone  v.  Hanley. 
Cedar  Works,  168  N.  C.  344,  Ann.  55  Wash.  458.  104  Pac.  767. 

Cas.    1917B,    992,    84    S.    B.    523; 


1964  Real  Pkopeety.  [§  507 

the  lessee  from  an  unfounded  claim  by  the  owner.*^ 
That  it  does  interrupt  the  running  of  the  statute  has 
been  decided  in  a  number  of  cases.^'^  A  mere  offer  to 
take  a  lease  would  seem  also  to  be  strong  evidence  of 
recognition  of  the  other's  title,  even  if  not  conclusive 
in  that  regard.^*'*  But  the  taking  of  a  lease  of  a  tract 
adjoining  the  land  of  which  the  lessee  is  in  wrongful 
possession  cannot  be  regarded  as  involving  a  recogni- 
tion of  the  lessor's  title  to  the  latter  land,  merely  be- 
cause he  is  the  owner  of  both  tracts."'^ 

Recognition  of  title  in  third  person.    Whether 


the  recognition  or  admission  by  the  person  in  posses- 
sion, that  the  title  is  in  a  third  j^erson,  operates  to  inter- 
rupt the  running  of  the  statute  as  against  the  true 
owner,  appears  to  depend  on  whether  it  is  to  be  con- 
ceded that  a  claim  of  title,  or  as  otherwise  expressed, 
possession  hostile  to  the  whole  world,  is  necessary  to 
the  running  of  the  statute.  It  is,  it  is  submitted,  not 
necessary,^"  and  consequently  such  recognition  does  not 
interrupt  the  running  of  the  statute.  Such  recognition 
may,  however,  if  it  goes  to  the  extent  of  an  attornment  to 

46.  But  see  Bidwell  v.  Evans,  ment  of  the  lessor's  title.  It 
156  Pa.  30,  26  Atl.  817.  would  rather  seem,  h6wever,  that 

47.  Abbey  Homestead  Ass'n  v.  the  invalidity  of  the  lease  would 
Willard,  48  Cal.  614;  Chicago  ordinarily  be  immaterial  in  this 
etc.  R.  Co.  V.  Keegan,  185  111.  70,  regard. 

56  N.   E.   1088;    Boling  v.   Ewing,  48.     Risher  v.  Madsen,  94  Neb. 

9     Dana     (Ky.)     76;     Campau    v.  72,    142    N.    W.    700;     Horton    v. 

LalTerty,    43    Mich.    429.    50    Mich.  Davidson,  135  Pa.  186,  19  Atl.  934. 

114,   5   N.   W.    648,    15    N.   W.    40;  49.     O'Flaherty     v.     Mann,     196 

Olson  V.  Burk,  94  Minn.  456,  103  111.  304,  63  N.  E.  727;    Rabberman 

N.   W.   335;    Hermann  v.   Mclver.  v.   Carroll,   207   111.   253,   69   N.   E. 

51   Tex.   Civ.  App.   270,   111   S.  W.  759;     Tex  v.   Pflug,  24   Neb.   66,   8 

766;     Northern     Pac.     R.     Co.     v.  Am.   St   Rep.   231,   39   N.   W.   839; 

George,    51    Wash.    303,    98    Pac.  Levy    v.    Yerga,    25    Neb.    764,    13 

1126.    In  Broad  v.  Beatty,  73  Ark.  Am.   St.  Rep.   525,  41  N.  W.  773; 

106,   83    S.    W.    339,   it   is   decided  Dixon  v.  Baty,  L.  R.  1  Exch.  259. 

that    the    acceptance    of    a    void  50.     Ante,   §   503,  note   47a.     In 

lease    raises    merely    a    rebuttable  Chicago  &  Alton  R.  Co.  v.  Keegan, 

presumption    of    an    acknowledg-  185    111.    70,    56    N.    E.    1088,    it 


§  507]  Adveese  Possession.  1965 

such  third  person  as  tenant,  or  an  agreement  to  hokl  as 
agent  of  such  person,  have  the  result  of  making  the 
possession  thereafter  enure  to  the  benefit  of  such  person 
rather  than  of  the  actual  possessor."^^ 

That  the  person  in  wrongful  possession  purchases, 
or  offers  to  purchase,  the  claim  of  a  third  person  to  the 
land,  has  been  decided  not  to  affect  the  running  of  the 
statute  as  against  the  true  owner.^-  These  decisions 
might  be  based  upon  the  theory,  either  that  the  pur- 
chase did  not  involve  any  recognition  of  the  title  of  the 
third  person,  or  that  the  recognition  of  the  title  of  a 
third  person  does  not  interrupt  the  running  of  the  stat- 
ute against  the  rightful  owner. 

If  two  persons  have  distinct  interests  in  property 
which  is  in  the  adverse  possession  of  another  person,  the 
fact  that  the  latter  purchases  or  otherwise  acquires  the 
interest  of  one  of  such  two  jDersons  does  not  affect  the 
running  of  the  statute  as  against  the  other  of  such  per- 
sons.^^  Accordingly  the  fact  that  the  wrongful  posses- 
sor purchases  the  interest  of  one  tenant  in  common  does 
not  preclude  him  from  asserting  the  statute  as  against 
the  other  tenants  in  common. ^^    Even  were  it  conceded 

appears  to  be  decided  that  if  one  Mass.  280,  31  N.  E.  300;   Dean  v. 

in  adverse  poss^ession  makes  a  con-  Goddard,  55  Minn.  290,   56  N.  W. 

veyance    of   the   land   to   another,  1060;  Wiese  v.  Union  Pac.  R.  Co.  77 

without      however      relinquishing  Neb.  40,  108  N.  W.  175;  Northrop 

possession,   the   continuity   of  the  v.    Wright,    7    Hill    (N.    Y.)    476; 

adverse      possession      is      broken.  West  v.  Edwards,  41  Oreg.  609,  09 

This  would  seem  to  be  upon  the  Pac.     992;     Bannon    v.     Brandon, 

theory  that  recognition  of  the  title  34  Pa.  St.  363,  75  Am.   Dec.  655: 

as  being  in  a  third  person  inter-  Alsworth     v.     Richmond,     Cedar 

rupts  the  ninning  of  the  statute.  Works,    172    N.    C.    17,    89    S.    K. 

51.  See   Robinson   v.    Bazoon.  1008. 

79    Tex.    524,    15    S.    W.    585,    and  53,     See    City    of    St.     Paul    v. 

ante,   §   501,  note  31.  Chicago    M.    &    SI.    P.    H.    Co..    45 

52.  Singer   Mfg.    Co.    v.    Stock-      Minn.  387,  48  N.  W.   17. 

man,  36  Cal.  535,  95  Am.  Dec.  54.  Elder  v.  McClaskey,  70 
205;  Clark  v.  Peckenpaugh.  4»;  Fed.  529,  17  C.  C.  A.  251;  Winter- 
Ill.  11;  Medlock  v.  Suter,  80  Ky.  burn  v.  Chambers.  91  Cal.  170, 
101;  Bean  v.  Bachelder,  74  Me.  27  Pac.  658;  Richardson  v.  Watta, 
202;  Warren  v.  Bowdran,  156  94  Me.  476,  48  Atl.  180;  Cook  v. 
2  R.  P.— 49 


1966  Real  Peopeety.  [^  507 

that  the  recognition  of  a  title,  which  is  really  in  A,  as 
being  in  B  would  interrupt  the  running  of  the  statute 
aganst  A,  the  recognition  of  the  title  to  one  interest  as 
being  in  B  would  not  interrupt  the  running  of  the  stat- 
ute against  A  as  to  an  entirely  distinct  interest. 

Effect  of  tenant's  acknowledgment.     If  one  is 

in  wrongful  possession  by  his  tenant,"^^  a  question  may 
arise  as  to  whether  the  tenant's  acknowledgment  of  the 
true  owner's  title  deprives  the  possession  of  the  ele- 
ment of  hostility,  so  as  to  interrupt  the  running  of  the 
statute.  There  are  a  number  of  decisions  to  the  effect 
that  such  acknowledgment  does  not  interrupt  the  run- 
ning of  the  statute,^*^  while  it  has  occasionally  been  as- 
serted that  it  does  cause  such  interruption.^'^  And  in  a 
few  cases  it  has  been  decided  that  it  causes  such  inter- 
ruption if  the  rightful  owner  does  not  know  of  the  rela- 
tion of  tenancy.^*  These  latter  cases  would  seem  to  in- 
dicate the  proper  distinction  in  this  regard.  If  the 
rightful  owner  has  no  reason  to  suspect  that  the  person 
wrongfully  in  possession  of  his  land  is  so  in  possession, 
not  in  his  own  behalf  but  in  behalf  of  another,  he  is 
justified  in  assuming  that  the  person  in  possession  has 
full  power  to  characterize  his  possession,  as  being  hostile 
or  the  reverse,  and  if  such  person  acknowledges  the  true 

Clinton,   64  Mich.  309,  8  Am.   St.  Robertson,    99    Tex.   138,    122   Am. 

Rep.  816,  31  N.  W.  317:    St.  Paul  St.  Rep.  609,  86  S.  W.  746,  87  S. 

V.   Chicago   etc.   R.   Co.,   45   Minn.  W.  1148;    Pickens  v.  Stout,  67  W. 

387,    48    N.    W.    17;     Jackson    v.  Va.  422,  68  S.  E.  354. 

Smith,    13    Johns.     (N.    Y.)     406;  57.     Russell    v.    Irwin,    38    Ala. 

Northrop   v.   Wright,   7   Hill.    (N.  44;    Illinois  Steel  Co.  v.  Budsisz, 

Y.)  476;  Coakley  v.  Perry,  3  Ohio  115     Wis.     68,     90     N.    W.     1019; 

St.   344.  Western  Union  Beef  Co.  v.  Thur- 

55.  Ante,  §  501.  note  31-  man,  70  Fed.  960,  17  C.  C.  A.  532. 

56.  Elliott  V.  Dycke,  78  Ala.  58.  Koons  v.  Steele,  19  Pa.  St. 
150;  Mills  V.  Bodley,  4  T.  B.  Mon.  203;  Thompson  v.  Pioche,  44  Cal. 
(Ky.)  248;  Middlesboro  Water-  508;  Louisiana  &  Texas  Lumber 
works  V.  Neal,  105  Ky.  58,  49  S.  Co.  v.  Alexander, — Tex.  Civ.  App. 
W.  428;    Warren  v.  Frederichs,  76  — ,  154  S.  W.  233. 

Tex.  647,  13   S.  W.  643;    Cobb  v. 


>^  507]  Adverse  Possession.  1967 

owner's  title,  tlie  latter  is  not  guilty  of  laches  in  failing 
to  take  legal  proceedings.  On  the  other  hand,  if  the 
rightful  owner  has  reason  to  know  that  the  person  in 
possession  is  in  possession  merely  in  behalf  of  another, 
he  has  no  right  to  assume  that  such  person  has  authority 
to  acknowledge  his  title,  or,  by  reason  of  such  acknowl- 
edgment, to  refrain  from  legal  proceedings.  In  at  least 
one  state-^^  it  has  been  said  that  the  fact  that  tlie  land- 
lord is  unaware  of  the  acknowledgment  by  his  tenant  of 
the  true  owner's  title  is  a  reason  for  not  regarding  such 
acknowledgment  as  effecting  an  interruption."'^  This 
view  is  apparently  based  on  the  theory  that  if  the  land- 
lord is  aware  of  the  acknowledgment  by  the  tenant,  he 
may  be  regarded  as  having  previously  authorized  it,  or 
as  being  in  a  position  to  repudiate  it  and  to  recover  pos- 
session from  the  tenant. 

Occasionally  the  asserted  inability  of  the  tenant  to 
interrupt  the  running  of  the  statute  by  taking  a  lease 
from  the  true  owner  is  in  tenns  based" ^  on  the  rule  that 
a  tenant  in  possession  cannot  attorn  to  a  third  person  not 
having  the  reversion."-  But  whether  the  acknowledg- 
ment of  title  takes  the  form  of  an  attornment,  that  is, 
the  acceptance  of  a  lease,  is  immaterial.  The  tenant 
cannot  usually  interrupt  the  running  of  the  statute  in 
favor  of  his  landlord,  hj  acknowledging  title  in  the  tnie 
owner,  for  the  reason  that  he  has  no  authority  to  make 
such  an  acknowledgment.     He  represents  his  landlord 

59.  Haynes  v.  Boardman,  119  takes  such  measures  was  regarded 
Mass.  414.  And  see  Rankin  v.  as  showing  that  the  running  of 
Tenbrook,  5  Watts  (Pa.)  383.  the  statute  was  interrupted. 

60.  In  Coyle  v.  Franklin,  54  61.  See  Elliott  v.  Dycke.  78 
Fed.  644,  4  C.  C.  A.  r,38,  it  is  Ala.  150;  Ellsworth  v.  Ksliok,  91 
decided  that  the  acknowledgment  Kan.  287,  137  Pac.  973;  Cobb  v. 
by  the  tenant  does  not  interTui)t  Robfrtson,  99  Tex.  138.  122  Am. 
the  running  of  the  statute  if  the  St.  Rep.  609,  8(i  S.  W.  74n,  S7  S. 
landlord  immediately  takes  meas-  W.  1148;  Rankin  v.  Tenbrook.  Ti 
ures  to  recover  the  possession  as  Watts  (Pa.),  386. 

having  been  forfeited  by  the  ten-  62.     See  1  Tiffany,  liandlord  & 

ant.    In  Custer  v.  Hall,  71  W.  Va.       Tenant,  §  19. 
119,    76    S.    E.    183,    a    failure    to 


l'J68  Eeal  Property.  [§  508 

for  the  purpose  of  holding  possession  against  third  per- 
sons, bnt  not  for  the  purpose  of  acknowledging  the  title 
of  third  persons. 

§  508.  Tacking.  The  question  has  frequently 
arisen  whether  the  running  of  the  statute  against  the 
true  owner  is  affected  by  the  fact  that  during  the  statu- 
tory period,  although  the  possession  was  continuously 
hostile  to  the  true  owner,  it  was  the  possession,  not  of 
one  person  alone,  but  of  two  or  more  persons  in  succes- 
sion. This  question  is  ordinarily  discussed  with  refer- 
ence to  the  relation  between  themselves  of  the  succes- 
sive possessors,  and  it  is  said  that  successive  possessions 
by  different  persons  may  be  "tacked,"  so  as  to  defeat 
the  claim  of  the  rightful  owner,  if  such  persons  are  in 
privity  one  with  another,  the  expression  ''privity"  serv- 
ing to  indicate  the  relationship  which  exists  between  two 
or  more  persons,  one  of  whom  claims  under  the  other 
or  others,  as  representing  the  same  persona  or  estate.®^ 

That  an  heir  is  entitled  to  tack  his  ancestor's  pos- 
session to  his  own  is  generally  conceded,*'^  and,  by  the 
very  great  weight  of  authority,  one  to  whom  another, 
having  adverse  possession  of  the  land,  voluntarily  trans- 
fers the  possession,  can  tack  to  his  own  possession  the 
possession  of  the  latter,*'^  even  though  the  transfer  of 

63.  Holmes,  The  Common  Law,  42    S.    E.    426;    CivH   v.    Toomey, 
368.  103  S.  C.  460,  88  S.  E.  261;   East 

64.  Sawyer  v.  Kendall,  10  Cush.  Tennessee    Iron    &    Coal    Co.    v. 
(Mass.)     241;     Fugate    v.    Pierce,  Broyles,    95   Tenn.   613,    32    S.    W. 

49  Mo.  441;  Montague  v.  Marunda,  761. 

71  Neb.  805,  99  N.  W.  653;    Alex-  65.     Frost  v.  Courtis,  172  Mass. 

ander  v.  Gibbon,  118  N.  C.  796,  54  401,  52  N.  E.  515;    Gage  v.  Gage, 

Am.    St.   Rep.   757,   24   S.   E.   748;  30  N.  H.  421;  McNeely  v.  Langan, 

Barrett  v.  Brewer,  153  N.  C.  547,  22     Ohio     St.     32;     Overfield     v. 

42   L.   R.   A.   N.   S.   403,   69    S.   E.  Christie,  7  Serg.  &  R.    (Pa.)    173. 

614;   McNeely  v.  Langan,  22  Ohio  And  see  cases  cited  in  next  note. 

St.   32;    Rowland   v.  Williams,   23  Contra,   King  v.   Smith,   Rice    (S. 

Or.  515,  32  Pac.  402;   Overfleld  v.  C.)    10;    Garrett  v.   Weinberg,   48 

Christie,  7  Serg.  &  R.    (Pa.)    173:  S.  C.  28. 
Epperson  v.  Stansill,  64  S.  C.  485. 


§  508] 


Adverse  Possessiojs", 


1969 


possession  is  accompanied  merely  by  an  oral  agreement 
of  transfer  of  title  or  by  an  invalid  written  convey- 
ance.^^ Consequently,  in  spite  of  decisions  that,  if  the 
land  in  dispute  is  not  included  in  the  description  in  a 
particular  conveyance,  the  possessions  of  the  grantor 
and  grantee  cannot  be  tacked,''^  it  seems  that  even  in 
such  case  the  possessions  can  be  tacked  if  there  was  an 
oral  transfer  of  the  possession  by  the  former  to  the 
latter,  in  addition  to  the  making  of  the  written  conve}'- 
ance.^® 

A  devisee  can  tack  to  his  possession  that  of  his 
devisor,''^^  and  even  in  the  case  of  a  sale  under  judicial 
process  or  decree,  the  purchaser  has  been  held  entitled 


66.  Faloon  v.  Simshauser,  130 
111.  649,  22  N.  E.  835;  Shedd  v. 
Alexander,  270  111.  117,  110  N.  E. 
327;  Comm.  v.  Gibson,  85  Ky.  666; 
Wishart  v.  McKnight,  178  Mass. 
356,  86  Am.  St.  Rep.  486,  59  N. 
E.  1028;  Sherin  v.  Brackett,  36 
Minn.  152,  30  N.  W.  551;  Crispen 
V.  Hannavan,  50  Mo.  536:  Davock 
V.  Nealon,  58  N.  J.  Law  21,  32  Atl. 
675;  McNeely  v.  Longan,  22  Ohio 
St.  32;  Parker  v.  Wolf,  69  Or.  446, 
138  Pac.  463;  Hughs  v.  Pickering, 
14  Pa.  St.  297;  Illinois  Steel  Co. 
V.  Budsisz,  106  Wis.  499,  48  L.  R. 
A.  830,  80  Am.  St.  Rep.  54,  81 
N.  W.  1027,  82  N.  W.  534;  Ram- 
bert  V.  Edmondson,  99  Tenn.  15, 
63  Am.  St.  Rep.  819,  41  S.  W.  935; 
Moran  v.  Moseley — Tex.  Civ.  App. 
— ,  164  S.  W.  1093.  But  see 
Sheldon  v.  Michigan  Cent.  R.  Co. 
161,  Mich.  503,  126  N.  W.  1056, 
criticized  10  Columbia  Law  Rev. 
763. 

67.  Southern  Iron  &  Steel  Co. 
V.  Stowers,  189  Ala.  .^14,  66  So. 
677;  Messer  v.  Hibernia  Sav.  etf. 
Soc.  149  Cal.  122,  84  Pac.  835; 
Rich  V.  Naffziger,  255    111.   98,  99 


N.  E.  341;  Lake  Shore  &  M.  S. 
Ry  Co.  V.  Sterling,  189  Mich.  36t;, 
155  N.  W.  383;  Jennings  v.  White, 
139  N.  C.  23,  51  S.  E.  799: 
Ferguson  v.  Prince,  136  Tenn.  543. 
190  S.  W.  548;  Allis  v.  Field,  89 
Wis.    327,    62   N.   W.   85. 

68.  St.  Louis  Southwestern  R. 
Co.  V.  Mulkey,  100  Ark.  71,  Ann. 
Cas.  1913C.  1339,  l.'^9  S.  W.  643; 
Rich  V.  Naffziger,  255  111.  98,  99 
N.  E.  341;  Helmick  v.  Davenport. 
R.  I.  &  N.  W.  Ry.  Co.,  174  Iowa, 
558,  156  N.  W.  736;  Vandall  v. 
St.  Martin,  42  Minn.  163,  44  N.  W. 
525;  Crowder  v.  N'eal,  lOn  Miss. 
730,  57  So.  1;  West  v.  Edwards. 
41  Or.  609.  69  Pac.  992:  Nah?r  v. 
Farmer,  60  Wash.  600,  111  Pac. 
768;  Mielke  v.  Dodge,  135  Wis. 
388.  115  N.  W.  1099:  Clithcro  v. 
Fenner,  122  Wis.  3r,6.  99  N.  W. 
1027,   106  Am.   St.   Rep.   978. 

68a.  Shaw  v.  Nicholay.  30  .Mo. 
99;  Sherin  v.  Brackett,  36  Minn. 
152.  36  N.  W.  551;  Dunbar  v. 
Aldrich,  79  Miss.  698,  31  So.  341; 
Hart  V.  Wllllania,  1S9  Pa.  31.  41 
All.  983.  Contra.  Burnett  v.  Craw- 
ford.  50  S.  Car.   ir.l.  27  S.  E.  645. 


1970  Real  Peopeety.  [§  508 

to  tack  to  his  possession  the  possession  of  tlie  person 
or  persons  whose  title  the  sale  was  intended  to  divest.^^ 

It  has  been  held  that  one  claiming  as  remainderman 
under  a  will  may  tack  to  his  own  possession  the  posses- 
sion of  the  testator  and  the  life  tenant  under  the  will, 
since  the  possession  of  each  is  under  the  same  titleJ" 

If  the  personal  representative  of  decedent,  without 
statutory  or  testamentary  authority,  takes  possession, 
his  possession  is  in  effect  that  of  a  wrongdoer,  and  it 
cannot  be  tacked  to  the  possession  of  decedent.'^^  The 
rule  is  different,  however,  if  he  has  authority  to  take 
possession.'^- 

Wlien,  upon  the  death  of  a  tenant  in  fee  simple,"  his 
widow  remains  in  possession  claiming  by  reason  of  a 
statute  giving  to  a  widow  the  right  of  possession,  there 
would  seem  to  be  such. a  ''privity"  between  the  deceased 
and  his  widow  as  to  entitle  her  to  tack  his  possession  to 
her  own,"^^  the  case  being  somewhat  analogous  to  that  of 
tacking  by  the  heir.  And  in  such  a  case  the  temporary 
possession  of  the  widow  may,  it  seems,  be  tacked  to  that 
of  the  husband's  heirs,  in  order  to  give  the  latter  title 

69.  Riggs  V.  Fuller,  54  Ala.  Co.  v.  Ferguson,— Tenn  Ch. — ,  35 
141;    Memphis    L.    R.    R.    Co.    v.      S.  W.  900. 

Organ,  67  Ark.  84,  55  S.  W.  952;  72.     Cannon  v.  Prude,   181  Ala. 

Kendrick  v.  Latham,  25  Fla.  819,  629,     62     So.     24;     Vanderbilt    v. 

6   So.  871;    Dunbar  v.  Aldrich,  79  Chapman,  172  N.  C.  809,  90  S.  E. 

Miss.    698,    31    So.    341;    Miller   v.  993;  Rowland  v.  Williams,  23  Ore. 

Bumgardner,  109  N.  C.  412,  13  S.  515,    32   Pac.   402.     See   Ricker   v. 

E.   935;    Clark  v.   Bundy,   29   Ore.  Butler,    45    Minn.    545,    48    N.    W. 

190,  44  Pac.  282;   Cooper  v.  Great  407. 

Falls   Cotton  Mills   Co.,   94   Tenn.  73.     To  that  effect  see  McEntire 

588,  30  S.  W.  353;  Hall  v.  Hall,  27  v.    Brown,    28     Ind.    347;     Mills' 

W.  Va.  468.  Heirs    v.    Bodley,    4    T.    B.    Mon. 

70.  Haynes  v.  Boardman,  119  (Ky.)  248;  Atwell  v.  Shook,  133 
Mass.  414;  Hart  v.  Williams,  189  N.  Car.  387,  45  S.  E.  777;  John- 
Pa.  31,  41  Atl.  983.  Contra,  son  v.  Johnson,  106  Ark.  9,  152 
Austin  V.  Rutland  R.  Co.,  45  Vt.  S.  W.  1017;  Mielke  v.  Dodge,  135 
215.  See  Hickman  v.  Link,  97  Wis.  388,  115  N.  W.  1099.  Contra, 
Mo.  482,  10  S.  W.  600.  semble,   Robinson   v.   AUison,   124 

71.  Bullen    v.    Arnold,    31    Me.  Ala.  325,  27  So.  461. 
583;   East  Tennessee  Iron  &  Coal 


§  508]  Adveesb  Possession.  1971 

by  adverse  possession.'^  When  the  widow  has  no  right 
of  possession  immediately  on  the  husband's  death,  but 
merely  a  right  to  have  dower  assigned  to  her,  the  pos- 
session of  the  widow  can,  it  has  been  held,  not  be  tacked 
to  the  possession  of  the  husband."^  This  view  has,  how- 
ever, been  questioned,  it  being  asserted  that  the  posses- 
sion of  the  widow  in  such  case,  not  being  adverse  to  the 
heirs,'^*'  should  be  regarded  as  in  their  behalf  and  con- 
sequently subject  to  be  tacked  to  the  possession  of  the 
decedent  to  the  same  extent  as  that  of  the  heirs. '^^ 

If  one  who  is  in  adverse  possession  leases  in  turn 
to  different  persons,  the  possession  of  each  of  these 
lessees  is,  for  the  purpose  of  the  statute  of  limitations, 
the  possession  of  the  lessor,"^^  and  the  possessions  of  the 
lessees  may  be  tacked  together,  and  may  also  be  tacked 
to  that  of  the  lessor.'^''  And  if  one  in  adverse  posses- 
sion in  his  own  right  attorns  to  a  third  person,  or 
agrees  to  hold  as  the  latter 's  agent,  his  possession  in 
his  own  right  may,  it  would  seem,  be  tacked  to  his  pos- 
session in  behalf  of  such  third  person,  for  the  purpose 
of  barring  the  claim  of  the  true  owner.^^^ 

It  has  been  asserted,  in  quite  a  number  of  cases, 
that  one  w^ho   disseises   another  whose   own  possession 

74.  Hickman  v.  Link,  97  Mo.  See  editorial  note  17  Harv.  Law 
482,     10     S.    W.    600;     AtweU     v.       Rev.  at  p.  277. 

Shook,   133  N.  Car.  387,  45   S.  E.  78.     Aiite.  §  501.  note  31. 

777;    Jacobs   v.    WiUiams,    173   N.  79.     Ramsey      v.      Glenny,      45 

C.  276,  91  S.  E.  951;   Mills'  Heirs  Minn.   401,   22   Am.    St.    Rep.   736. 

V.    Bodley,    4    T.    B.    Mon.    (Ky.)  48   N.   W.   322;    Landon   v.   Town- 

248.  shend,  129  N.  V.  166,  29  N.  E.  71; 

75.  McEntire  v.  Brown,  28  Ind.  Alexander  v.  Gibbon,  118  N.  C. 
347;  Sawyer  &  Kendall.  10  Gush.  796,  54  Am.  St.  Rep.  757,  24  S.  E. 
(Mass.)  241;  Marr  v.  Gilliam,  1  748;  Weaver  v.  Love,  146  N.  C. 
Coldw.  (Tenn.)  488;  Baker  v.  414,  59  S.  E.  1041;  Thompson  v. 
Hale,  6  Baxt.  (Tenn.)  46;  Doe  v.  Kauffelt,  110  Pa.  St.  209,  1  Atl. 
Barnard,   13  Q.  B.  945.  267;  Sims  v.  Eastland,  3  Head  3i;S; 

76.  Post,    §    513    (k),   note   60.  Hanks    v.     Houston     Oil     Co.     of 

77.  Atwell  V.  Shook,  133  N.  C.  Texas,— Tex  Civ.—,  173  S.  W.  635. 
387,  45  S.  E.  777;  Mill's  Heirs  v.  80.  But  Robinson  v.  Bazoon,  19 
Bodley,   4   T.   B.   Mon.    (Ky.)    248.  Tex.  524,  15   S.  W.  585,  is  contra, 


1972 


Real  Pbopeety. 


[§  509 


was  that  of  a  disseisor,  and  so  adverse  to  the  record 
owner,  cannot  tack  the  adverse  possession  of  such  other 
to  his  own  adverse  possession,  in  order  to  make  up  the 
statutory  period.*^  There  are  a  few  cases  of  a  con- 
trary tendency, ^2  and  the  view  first  referred  to  has  heen 
criticized  on  the  ground  that  the  statute  of  limitations 
should  be  applied  as  against  one  who  allows  himself  to 
remain  out  of  possession  for  the  statutory  period,  with- 
out reference  to  who  may  happen  to  be  seised  of  the 
land  during  that  period.^^ 

There  can  be  no  tacking  if  the  possession  of  one 
person  does  not  immediately  follow  upon  that  of  the 
other,  since  in  that  case  the  element  of  continuity  of 
possession  is  absent.^^ 

§  509.  Personal  disabilities.  The  statute  of  limita- 
tions invariably  extends  the  period  for  bringing  an  ac- 


81.  Little  V.  Vice,— Ala.— ,  76 
So.  942;  Lucy  v.  Tennessee  &  C. 
R.  Co.,  92  Ala.  246,  8  So.  806; 
City  &  County  of  San  Francisco 
V.  Fulde,  37  Cal.  349,  99  Am.  Dec. 
278;  Smith  v.  Chapin,  31  Conn. 
531;  McEntire  v.  Brown,  28  Ind. 
347;  Sawyer  v.  Kendall,  10  Cush. 
(Mass.)  241;  Sherin  v.  Brackett, 
36  Minn.  152,  30  N.  W.  551; 
Crispen  v.  Hannavan,  50  Mo.  536; 
Locke  V.  Whitney,  63  N.  H.  597,  3 
Atl.  920;  Low  v.  Schaffer,  24  Ore. 
239,  33  Pac.  678;  Erck  v.  Church, 
87  Tenn.  75,  4  L.  R.  A.  641,  11 
S.  W.  794;  Heflin  v.  Burns,  70 
Tex.  347,  8  S.  W.  48;  Jarrett  v. 
Stevens,  36  W.  Va.  445,  15  S.  E. 
177. 

82.  Fanning  v.  Willcox,  3  Day 
258;  Shannon  v.  Kinny,  1  A.  K. 
Marsh  3;  Hord  v.  Walton,  2  A.  K. 
Marsh  620;  Candler  v.  Lunsford, 
4  Dev.  &  B.  407;  Davis  v.  Mc- 
Arthur,    78   N.    C.    357;    Scales   v. 


Cockrill,  3  Head,  432.  And  see 
Wishart  v.  McKnight,  178  Mass. 
356,  86  Am.  St.  Rep.  486,  59  N. 
E.  1028. 

83.  3  Harv.  Law  Rev.  at  p. 
324,  article  by  Professor  J.  B. 
Ames,  reprinted.  Lectures  on 
Legal  History,  at  p.  205.  See  also 
1  Harvard  Law  Rev.  248.  10 
Columbia  Law  Rev.  761.  The 
merits  of  the  prevailing  view  are 
excellently  presented  by  Professor 
Henry  W.  Ballantine,  32  Harv. 
Law  Rev.  at  p.  147  et  seg. 

84.  Louisville  N.  R.  Co.  v. 
Philyaw,  88  Ala.  264,  6  So.  837; 
Kilburn  v.  Adams,  7  Mete. 
(Mass.)  33,  39  Am.  Dec.  754; 
Turner  v.  Baker,  64  Mo.  218,  27 
Am.  Rep.  226;  Brandt  v.  Ogden, 
1  Johns.  156;  Jackson  v.  Leonard. 
9  Cow.  (N.  Y.)  653;  Cunningham 
v.  Patton,  6  Pa.,  355;  Warren  v. 
Fredericks,  76  Tex.  647,  13  S.  W. 
643;    Winslow    v.    Newell,    19    Vt. 


§  509]  Adverse  Possession.  1973 

tion  to  recover  land  in  case  tlie  plaintiff  was  under  dis- 
ability at  the  time  the  right  of  action  accrued.  The 
Statute  of  James  I.  contained  such  provision  in  favor 
of  (1)  persons  under  twenty-one  years,  (2)  femes  covert, 
(3)  persons  uon  compos  mentis,  (4)  persons  imprisoned, 
and  (5)  persons  *' beyond  the  seas." 

The  saving  clause  in  favor  of  infants  is  retained  in 
most,  if  not  all,  of  the  state  statutes,  though  the  time  at 
which  infancy  ceases  differs  in  different  states.  Tlie 
saving  in  favor  of  married  women  also  still  exists  in  the 
majority  of  states,  though  in  some  it  has  been  expressly 
abolished,  in  view  of  legislation  enal)ling  a  married  wo- 
man to  sue  alone.  The  saving  in  favor  of  persons  uoi 
compos  mentis  is  usually  retained,  and  those  in  favor  of 
persons  imprisoned  and  of  persons  "beyond  the  seas," 
or,  what  is  regarded  as  equivalent,  "absent  from  the 
United  States,"  are  also  frequently  to  be  found.  In 
some  states,  moreover,  there  are  exceptions  in  favor  of 
alien  enemies.  The  statutes  differ  greatly  as  to  the  ex- 
tent of  time  after  the  removal  of  the  disability  within 
which  an  action  may  be  brought,  some  naming  the  full 
period  of  limitation,  and  others  naming  a  much  shorter 
period.^^ 

These  exceptions  in  statutes  limiting  tlie  time  for  the 
recovery  of  land,  as  in  those  applical)le  to  personal  ac- 
tions only,  are  usually  construed  as  api)licabl('  only  to 
a  disability  existing  at  the  time  of  the  accrual  of  the 
right  of  action,  and  the  fact  that  a  disability  in  llu' 
owner  to  sue  arises  after  such  accrual  does  not  aft'ect 
the  running  of  the  statute.^*'  Accordingly,  if  the  right 
of  action  has  once  existed  in  favor  of  a  person,  the  fact 

164;  Jarrett  v.  Stevens,  36  W.  Va.  Ga.  267.  63  Am.  Dec.  235;  Currier 

445,  15  S.  E.  177.  v.    Gale,    3    Allen     (Mass.)     328; 

85.  The  statutory  provisions  as  Demarest  v.  Wynkoop,  3  Johns, 
to  disabilities  are  summarized  In  Ch.  (N.  V.)  129,  8  Am.  Dec.  476; 
Wood,  Limitations  (3d  Ed.)  §  Holmes  v.  Carr.  172  N.  C.  213,  90 
237.     Dembitz,  Land  Titles  §  177.  S.    E.   152;    Milton   v.    Pace,   85   S. 

86.  Doe  d.  Caldwell  v.  Thorp,  8  C.  373,  67   S.   E.   458. 
Ala.  253;   Wellborn  v.  Weaver,  17 


1974 


Real.  Propeety. 


[§  509 


that  it  passes  from  him  by  descent  to  one  under  the  dis- 
ability of  infancy  does  not  extend  the  time  for  bringing 
suit.*^  And  if  a  disability  existing  at  the  time  of  the 
disseisin  or  other  accrual  of  the  cause  of  action  is  once 
removed,  the  fact  that  a  subsequent  disability  inter- 
venes, as  when  a  female  infant,  after  arriving  at  age, 
marries,  such  subsequent  disability  does  not  operate  in 
her  favor.^^ 

If  the  owner  of  the  land  is  under  two  or  more  disa- 
bilities at  the  time  of  the  accrual  of  the  cause  of  action, 
he  may  take  advantage  of  both,  or,  rather,  of  the  one 
which  endures  the  longest;*^  but  if  only  one  disability 
exists  at  that  time,  he  can  take  advantage  of  that  alone, 
and  the  fact  that,  before  such  disability  terminates,  an- 
other intervenes,  as  when  an  infant  feme  sole  marries, 
does  not  extend  the  time  for  the  recovery  of  the  land, 
or,  as  it  is  frequently  stated,  disabilities  cannot  be 
'' tacked.  "^*^     Likewise,  the  disabilities  of  different  per- 


87.  Harris  v.  McGuvern,  99  U. 
S.,  61  affirming  2  Sawy.  515,  Fed. 
Cas.  No.  6125;  Gates  v.  Beck- 
worth,  112  Ala.  356,  20  So.  399; 
Castro  V.  Geil,  110  Cal.  292,  52 
Am.  St.  Rep.  84,  42  Pac.  804; 
Doyle  V.  Wade,  23  Fla.  90,  11 
Am.  St.  Rep.  334,  1  So.  516; 
Hale's  Heirs  v.  Ritchie,  142  Ky. 
424,  134  S.  W.  474;  Ray  v.  Thur- 
man's  Ex'r,  13  Ky.  L.  Rep.  3, 
15  S.  W.  1116;  Burdett  v.  May. 
100  Mo.  13,  12  S.  W.  1056;  Lyons 
V.  Carr,  77  Neb.  883,  110  N.  W. 
705;  Jackson  v.  Moore,  13  Johns. 
(N.  Y.)  513,  7  Am.  Dec.  398; 
Campbell  v.  Dick,— Okla.— ,  157 
Pac.  1062;  Lynch  v.  Cox,  23  Pa. 
265;  Fore  v.  Berry,  94  S.  C.  71, 
78  S.  E.  706;  Pickens  v.  Stout,  67 
W.  Va.  422,  68  S.  E.  354.  Contra, 
Everett's  Ex'rs  v.  Whitfield's 
Adm'rs,  27  Ga.  133.  That  the 
disability  of  a  devisee  is  not  avail- 


able, if  the  statute  had  begun  to 
run  in  favor  of  testator,  see  De 
Hatre  v.  Edmunds,  200  Mo.  246, 
98  S.  W.  744. 

88.  Gherson  v.  Brooks, —  (Ark.) 
— ,  5  S.  W.  329;  Keil  v.  Healey, 
84  111.  104,  25  Am.  Rep.  434; 
Priddy  v.  Boice,  201  Mo.  309,  99 
S.  W.  1055,  119  Am.  St.  Rep.  762, 
9  Ann.  Cas.  874,  9  L.  R.  A.  (N. 
S.)    718. 

89.  Jackson  v.  Johnson,  5  Cow, 
(N.  Y.)  74,  15  Am.  Dec.  433; 
Butler  V.  Howe,  13  Me.  397; 
North  V.  James,  61  Miss.  761; 
Keeton's  Heirs  v  Keeton's  Adm'r, 
20  Mo.  530;  Blake  v.  Hollands- 
worth,  71  W.  Va.  387,  43  L.  R.  A. 
(N.   S.)    714,  76   S.   E.   814. 

90.  Bunce  v,  Wolcott,  2  Conn. 
27;  White  v.  Clawson,  79  Ind. 
188;  Duckett  v.  Crider,  11  B. 
Mon.  (Ky.)  188;  Wickes  v. 
Wickes,  98  Md.  307,  56  Atl.  1017; 


§  510]  Advebse  Possession.  1975 

sons  canuot  be  tacked,  in  order  to  make  up  tlie  statutory 
period;  and  so,  if  the  owner  is  under  a  disability  from 
the  time  of  the  accrual  of  the  right  of  action  till  his 
death,  his  infant  heir  cannot  tack  his  own  disability  to 
that  of  his  ancestor,  in  order  to  extend  the  statutory 
period.^' 

§  510.  Exception  in  favor  of  the  sovereign.  Ac- 
cording to  the  maxim  Nullum  tempus  occurrit  regi,  the 
adverse  possession  of  land  belonging  to  the  state  cannot, 
unless  the  statute  otherwise  provides,  divest  the  govern- 
ment title.*^-  Nor  can  the  state  authorities,  even  by  an 
express  provision  to  that  effect,  make  the  statute  of 
limitations  effective  as  against  the  United  States.^-^  The 
statutory  limitation  begins,  however,  to  run  in  favor 
of  one  in  hostile  possession  of  public  land  so  soon  as  its 
ownership  passes  to  a  grantee  of  the  government.  In 
determining  the  time  at  which  the  private  ownership  be- 
gins for  this  purpose,  the  decisions  are  not  in  accord, 
some  holding  that  it  does  not  begin  until  the  issue  of 
the  patent,^^  while   others  consider  it  as  beginning  so 

Herndon  v.  Yates  — (Mo.)—,   194  Central  Pac.  R.  Co.,  24  Cal.   245; 

S.    W.    46;    Nutter    v.    De    Roche-  Twining    v.    City    of    Burlington, 

mont,   46   N.   H.   80;    Demarest   v.  68  Iowa,  284,  27  N.  W.  243;    Hall 

Wynkoop,    3    Johns.    Ch.    (N.    Y.)  v.     viittings*     Lessee,     2     Har.     & 

129,    9   Am.  Dec.  476;    Cozzens  v.  J.      (Md.)      112;      Munshower     v. 

Farnan,   30   Ohio   St.  491,  27  Am.  Patton,   10   Serg  &   R.    (Pa.)    334. 

Rep.   470;    Thompson  v.   Smith,  7  13   Am.   Dec.   678;    Hall  v.   Webb, 

Serg.  &  R.    (Pa.)    209;   McFarland  21   W.   Va.   318.     See,   as   to  stat- 

V.  Stone,  17  Vt.  165,  44  Am.  Dec.  utes    on    the    subject,    2    Dembitz, 

325;    Contra,   Miller   v.    Bumgard-  Land    Titles.    §    179. 
ner,  109   N.  C.  412,   13   S.   E.  935.  93.     Gibson     v.     Chouteau.      13 

91.  Dowell  V.  Tucker.  46  Ark.  Wall.  ( U.  S.)  92.  20  L.  Ed.  534: 
438;  Griswold  v.  Butler,  3  Conn.  Redfield  v.  Parks.  132  U.  S.  239. 
227;  Pim  v.  City  of  St.  Louis,  122  33  L.  Ed.  327. 

Mo.  654,  27  S.  W.  525;    Henry  v.  94.     RedHeld    v.    Parks,    132    U. 

Carson,    59    Pa.    St.    297;    Jackson  S.    239,    33    L.    9d.    327;     String- 

V.    Houston,    84    Tex.    622,    19    S.  fellow  v.  Tennessee  Coal.   Iron   & 

W.    799.  R-    R.    Co.,    117    Ala.    250,    22    S. 

92.  Wagnon  v.  Fairbanks,  105  E.  997;  Mathews  v.  Ferrca,  45 
Ala.    528,    17    So.    20;     Doran    v.  Cal.    51;    Chiles    v.    Calk.    4    Bibb 


1976 


Real  Peopeety. 


[§  510 


soon  as,  by  payment  for  the  land,  the  individnal  has  be- 
come  entitled  to   a   patent.''^ 

The  question  of  the  extent  to  which  the  statute  of 
limitations  runs  against  a  municipal  or  quasi  municipal 
corporation,  as  regards  land  belonging  to  it,  has  been 
the  subject  of  much  discussion,  and  the  decisions  are 
not  in  accord  on  the  question.  In  the  majority  of  the 
states,  land  owned  by  a  municipality,  and  devoted  to 
uses  of  a  purely  public  character,  as  when  the  "fee"  of 
a  street  or  park  is  vested  in  the  mmiicipality,  or  land  is 
conveyed  to  the  municipality  for  a  public  building, 
hospital,  or  the  like,  the  municipality  is  regarded  as 
merely  the  agent  of  the  state,  and  its  rights  cannot 
be  affected  by  the  statute  of  limitations,'"''  though  in  a 


(Ky.)  554;  Smith  v.  McCorkle, 
105  Mo.  135,  16  S.  W.  602;  King 
V.  Thomas,  6  Mont.  409,  12  Pac. 
865;  South  End  Min.  Co.  v. 
Tinney,  22  Nev.  221,  38  Pac. 
402;  La  Frombois  v.  Jackson,  8 
Cow  589,  18  Am.  Dec.  463;  Clark 
V.  Southard,  16  Ohio  St.  408; 
Steele  v.  Boley,  7  Utah,  64,  24  Pac. 
755. 

95.  Hibben  v.  Malone,  85  Ark. 
584,  109  S.  W.  1008;  Bauman  v. 
Grubbs,  26  Ind.  419;  Dolen  v. 
Black.  48  Neb.  688,  67  N.  W.  760; 
Ambrose  v.  Huntington  34  Ore. 
484,  56  Pac.  513;  Patten  v.  Scott, 
118  Pa.  St.  115,  12  Atl.  292,  4 
Am.  St.  Rep.  576;  Udell  v.  Peak. 
70  Tex.  547,  7  S.  W.  786;  Dutton 
V.  Thompson,  85  Tex.  115,  19  S. 
W.   1026. 

96.  Mobile  Traii»;portation  Co.  v. 
Mobile,  128  Ala.  3.35,  30  So.  645, 
86  Am.  St.  Rep.  143,  64  L.  R.  A. 
333;  Board  of  Education  of  City 
&  County  of  San  Francisco  v. 
Martin,  92  Cal.  209,  28  Pac.  799; 
Norrell  v.  Augusta  R.  &  Electric 
Co.,  116  Ga.  313,  59  L.  R.  A.  101, 


42  S.  E.  466;  City  of  SuHivan 
V.  Tichenor,  179  111.  97,  53  N. 
E.  561;  Close  v.  Chicago,  257 
111.  47,  100  N.  E.  215;  Cheek  v. 
City  of  Aurora,  92  Ind.  107; 
Kuehl  V.  Town  of  Bettendorf,  179 
Iowa,  1,  161  N.  W.  28;  Inhab- 
itants of  Charlotte  v.  Pembroke 
Iron  Works,  82  Me.  391,  8  L.  R. 
A.  828,  19  Atl.  902;  Brady  v. 
City  of  Baltimore,  130  Md.  506, 
101  Atl.  142;  St.  Vincent  Female 
Orphan  Asylum  v.  Troy,  76  N. 
Y.  108,  32  Am.  Rep.  286;  Heddle- 
ston  V.  Hendricks,  52  Ohio  St. 
460,  40  N.  E.  408;  Comm.  v. 
Moorehead,  118  Pa.  344,  4  Am. 
St.  Rep.  559,  12  Atl.  424;  McKee 
V.  Pennsylvania  R.  Co..  255  Pa. 
560,  100  At.  454;  Almy  v.  Church, 
18  R.  I.  182,  26  Atl.  58;  Norfolk 
&  W.  R.  Co.  V.  Supervisors  of 
Carroll  County,  110  Va.  95.  65  S. 
E.  531;  Gustaveson  v.  Dwyer,  83 
Wash.  303.  145  Pac.  458;  Ralston 
v.  Town  of  Weston.  46  W.  Va. 
544,  76  Am.  St.  Rep.  834,  33  S. 
E.  326. 
But  the  city  may,  by  some  au- 


§  510] 


Adverse  Possession. 


19; 


number  of  states  a  different  view  obtains.""  But  even  in 
the  former  class  of  states  there  is  a  tendency  to  distin- 
guish between  land  devoted  to  ]mh\ic  use  and  that  which 
is  held  by  the  municipality  in  a  "private  capacity,"  and 
over  which  it  has  the  power  of  alienation,  the  latter  be- 
ing rei>:arded  as  subject  to  the  bar  of  the  statute.^^ 

While  there  are  authorities  to  the  effect  that  land 
held  by  a  railroad  com])any  for  right  of  way  purposes 
is  so  devoted  to  a  public  use  as  not  to  be  the  sub- 
ject of  adverse  possession,»»  such  land  is.  by  the  weight 
i)f  authority,  so  subject.* 


tliorities,  be  estopped,  by  reason 
of  Its  acquiescence  in  improve- 
ments made  on  its  land,  to  claim 
title  to  the  land;  Christopherson 
V.  Incorporated  Town  Forest 
City,  178  Iowa,  893,  160  N  VV.  691; 
Barton  v.  City  of  Portland.  74 
Ore.  75.  144  Pac.  114(1;  Wall  v. 
Salt  Lake  City,— Utah— .  168  Puc. 
766;  See  Dillon,  Mun.  Corp.,  §§ 
1187,    1191,    1194. 

97.  Fort  Smith  v.  McKibbln, 
41  Ark.  45,  48  Am.  Rep.  19; 
Axmear  v.  Richards,  112  Iowa, 
657.  84  N.  W.  686;  Covington  v. 
McNickles's  Heirs,  18  B.  Mon. 
(Ky.)  262;  Pastnrino  v.  City  of 
Detroit,  182  Mich.  5,  148  N.  W. 
231;  Wayzata  v.  Great  Northern 
Ry.  Co.,  50  Minn.  438,  52  N.  W. 
913;  St.  Charles  County  v. 
Powell,  22  Mo.  525.  66  Am.  Dec. 
637;  Meyer  v.  City  of  Lincoln,  33 
Neb.  566,  18  L.  R.  A.  146,  29 
Am.  St.  Rep.  500,  50  N.  W.  763; 
Oxford  Township  v.  Columbia,  3S 
Ohio  St.  87;  Ostrom  v.  City  of 
San  Antonio,  77  Tex.  345,  14  S. 
W.  66. 

98.  Simplot  V.  Chicago  M.  & 
St.  P.  Ry.  Co.  (C.  C.)  16  Fed. 
350;  Ames  v.  City  of  San  Diego, 
101     Cal.     390,     35      Pac.     1005; 


Robinson  v.  Lemp,  29  Idaho.  661. 
161  Pac.  1024;  City  of  Chicago 
V.  MIddlebrooke,  143  111.  265,  32 
N.  E.  457;  City  of  Bedford  v. 
Willarcl.  133  Ind.  562,  36  Am. 
St.  Rep.  563,  33  N.  E.  368;  City 
of  New  Orle;m5!  v.  Salmen  Brick 
&  LumLer  Co.,  135  La.  828.  66  So. 
237;  In  re  Willard  Parker  Hos- 
pital, 217  N.  Y.  1,  111  N.  E.  256; 
Turner  v.  Hillsboro,  127  N.  C. 
153,  37  S.  E.  191;  Board  of  Super- 
visors of  Tazewell  County  v.  Nor- 
folk &  W.  R.  Co.,  119  Va.  763,  91 
S.  E.  124;  GJ3tai''?son  v.  Dwyer, 
83  Wash.  303,  145  Pac.  458,  2 
Dillon,  Mun.  Corp.  (5th  Fa\.).  5 
1188    et    seq. 

99.  Southern  Pac.  Co.  v. 
Hyatt,  132  Cal.  240,  54  L.  R.  A. 
522,  64  Pa<?.  272;  McLucas  v. 
St.  Joseph,  etc..  R.  Co..  67  Neb. 
603,  93  N.  W.  928.  97  N.  W.  312, 
2  Ann  Cas  715;  Conwell  v.  Phil- 
adelphia.  etc.,  R.  Co.,  241  Pa. 
172,  88  Atl.  417. 

1.  Mobile  &  G.  R.  Co.  v.  Hulh- 
erford.  184  Ala.  204.  63  So.  lOO.',: 
St.  Louis,  etc.  R.  Co.  v.  Martin. 
104  Ark.  274.  149  N.  W.  69:  Il- 
linois Cent.  R.  Co.  v.  Houghton. 
126  111.  23,^,  18  N.  K.  301,  9  Am. 
St.    Rep.    nsi.    1    L.    R.    A.    213; 


1978  Real  Peoperty.  [§511 

§  511.  Effect  as  vesting  and  divesting  title.  While 
occasionally  the  statutes  limiting  the  time  for  the  bring- 
ing of  an  action  to  recover  land  provide  that  a  failure 
to  sue  within  the  time  named  shall  operate  to  transfer 
the  title  to  the  person  in  possession,  they  almost  in- 
variably in  terms  bar  the  remedy  merely.  They  have, 
however,  with  few,  if  any,  exceptions,  been  regarded  as 
operating  to  divest  the  title  of  the  former  owner  and  to 
give  title  to  the  wrongful  possessor.  The  theory  on 
which  this  result  may  be  regarded  as  based  has  been 
stated  by  a  great  master  of  the  law  as  follows:  True 
property  or  ownership  consists  of  possession  coupled 
with  the  unlimited  right  of  possession,  and  when  one 
person  is  dispossessed  by  another  only  the  right  of  pos- 
session remains  vested  in  the  former,  and  the  disposses- 
sor  has  complete  ownership  except  for  this  outstanding 
right  of  possession.  When  the  period  of  limitation  has 
run,  the  statute,  by  forbidding  the  exercise  of  this  right, 
virtually  annihilates  it,  and  the  imperfect  title  there- 
upon becomes  perfect.^ 

Pittsburgh,  etc.  R.  Co.  v.   Strick-  session    of    land    in    the   assumed 

ley,    155    Ind.   312,   58   N.   E.   192;  character    of    owner    and    exercis- 

Louisville,    etc.    R.    Co.    v.    Smith,  ing  peaceably  the  ordinary  rights 

125   Ky.   336,   101    S.   W.   317,    128  of  ownership  has  a  perfectly  good 

Am.    St.    Rep.    254;    Matthews    v.  title  against  all  the  world  but  the 

Lake  Shore  etc.  R.  Co.,  110  Mich.  rightful      owner.       And      if     the 

170,    67    N.   W.    1111,    64    Am.    St.  rightful     owner     does     not     come 

Rep.    336;    Northern   Pac.   R.   Co.  forward    and   assert   his   title   by 

V.  Townsend,  84  Minn.  152,  87  Am.  process  of  law  within  the  period 

St.  Rep.  342,  86  N.  JV.  1007;   Pax-  prescribed    by    the    provisions    of 

ton  V.  Yazoo,  etc.,  R.  Co.,  76  Miss.  the    statute    of    limitations    appli- 

536,  24   So.   536;    Northern  Pac.  R.  cable    to    the    case,    his    right    is 

Co.    V.    Hasse,    28    Wash.    353,    68  forever  extinguished  and  the  pos- 

Pac.  882,  92  Am.  St.  Rep.  840.  sessory    owner    acquires    an    ab- 

2.     Professor     J.     B.     Ames,     3  solute    title."      Perry    v.    Clissold, 

Harvard     Law    Rev.     at     p.     318,  App.  Cas.    (1907)    72. 
Lectures    on    Legal    History,    193,  "Possession    itself    is    a    species 

198.     So   it   is   said   by   the   Judi-  of   title,    of   the   lowest    grade,    it 

cial  Committee  of  the  Privy  Coun-  is  true;  yet  it  is  good  against  all 

cil,    in    an    opinion    delivered    by  who    cannot   show   a   better,    and 

Lord  Macnaghten;    "It  cannot  be  by    lapse    of    time    may    become, 

disputed    that    a    person    in    pos-  under  the  statute,  perfect  and  in- 


§  511] 


Ad\'eese  Possession. 


1979 


The  title  being  thus  vested  in  the  wrongful  posses- 
sor by  reason  of  the  running  of  the  statute,  it  follows 
that  he  may  assert  his  ownership,  in  an  action  of  eject- 
ment or  otherwise,  against  the  whole  world,^  including 
the  original  owner,^  and  a  legal  conveyance  is  necessary 
in  order  to  revest  the  o^\Tiorship  in  the  latter,  after  the 
lapse  of  the  statutory  period,  a  mere  disclaimer  of  the 
benefit  of  the  statute  by  the  wrongful  possessor  being 
insufficient.^ 

A  court  of  equity  will  frequently  compel  a  pur- 
chaser to  accept  a  title  acquired  by  adverse  possession." 


defeasible."  White,  J.,  in  Mc- 
Neally  V.  Langan,  22  Ohio  St. 
32. 

3.  Harpeuding  v.  Reformed 
Protestant  Dutch  Church  of  New 
York  City,  16  Pet.  (U.  S.)  455;. 
Jacks  V.  Chaffln,  34  Ark.  534; 
McDuffee  v.  Sinnott,  119  III.  449, 
10  N.  E.  385;  Sutton  v.  Pollard, 
96  Ky.  640,  29  S.  W.  637;  Arm- 
storn  V.  Risteau's  Lessee,  5  Md. 
256;  Joseph  v.  Bonaparte,  118 
Md.  591,  85  Atl.  962;  Schock  v. 
Falls  City,  31  Neb.  599,  48  N. 
W.  468;  Sherman  v.  Kane,  86  N. 
Y.  57;  Baker  v.  Oakwood,  123  N. 
Y.  16,  10  L.  R.  A.  378,  25  N.  E. 
312;  Mitchell  v.  Campbell,  19  Ore. 
198,  24  Pac.  455;  Spath  v.  Sales,  70 
Ore.  269, 141  Pac.  160 ;  Way  v.  Hoot- 
on,  156  Pa.  8,  26  Atl.  784;  Gulf,  C. 
&  S.  F.  Ry.  Co.  V.  Cusenberry, 
86  Tex.  525,  26  S.  W.  43;  Hughes 
V.  Graves,  39  Vt.  359. 

4.  Sharon  v.  Tucker,  144  U. 
S.  533;  Jacks  v.  Chaffin,  34  Ark. 
534;  Cannon  v.  Stockman,  36 
Cal.  535,  95  Am.  Dec.  205;  Goetz 
V.  Glos,  266  111.  238,  107  N.  E. 
464;  Armstrong  v.  Risteau's 
Lessee.  5  Md.  256,  59  Am.  Dec. 
115;  Barnes  v.  Light.  116  N.  Y. 
34,    22    N.    E.    441;    Hall    v.    Hall, 


27   W.   Va.   468,    480. 

5.     Tennessee   Coal   I.   &   w.   R. 

Co.  V.  L^nn,  123  Ala.   112,  26   So. 

245,    82   Am.   St.   Rep.    108;    Todd 

V.    Kauffman,    8    Mackey    (D.    C.) 

304;      Illinois     Cent.     R.     Co.     v. 

Wakefield,     173     111.     564,     50    N. 

E.  1002;   Riggs  v.  Riley,  113  Ind. 

208,    15    N.    E.    253-;     Inhabitants 

of    School    Dist.    No.    4,    in    Win- 

throp     V.     Benson,     31     Me.    381; 

Allen    V.    Mansfield.    82    Mo.    688; 

Towles  V.  Hamilton.  94  Neb.  588. 

143    N.    W.    935;    Bell    v.    Adams. 

81  N.  C.  118;  Round  Mountain 
Lumber  &  Coal  Co.  v.  Bass,  136 
Tenn..  687,  191  S.  W.  341;  Bruce 
V.  Washington,  80  Tex.  368.  l.'i 
S.  W.  1104;  Austin  v.  Hailey,  37 
Vt.  219,  86  Am.  Dec.  703. 

6.  See  e.  tj.  Tewksbury  v. 
Howard,  138  Ind.  103,  37  N.  E. 
353;  Stevenson  v.  Polk.  71  Iowa. 
278.  32  N.  W.  340;  Keepers  v. 
Yocum.  84  Kan.  554.  114  Pac. 
1063;  Logan  v.  Bull  78  Ky.  607; 
Westerfield  v.  Cohen,  130  La.  5.33. 
58  So.  175;  Stewart  v.  Kreuzer, 
127  Md.  1.  95  Atl.  1052;  Conley 
v.  Finn,  171  Mi.ss.  70,  68  Am. 
St.  Rep.  399,  50  N.  E.  460; 
Barnard  v.  Brown,  112  MIoh. 
452.    67   Am.   St.    Rep.   432.   70    N. 


1980 


Real  PROPEPtTY. 


[§  511 


and  it  lias  been  held  tliat  one  may  maintain  a  suit  to 
remove  the  cloud  on  the  title  thus  acquired,  created  by 
the  documentary  title  of  the  original  owner.'^  A  title 
thus  acquired  cannot  be  affected  by  the  repeal  of  the 
statute  of  limitations  under  which  it  was  acquired.^ 
Although  the  effect  of  the  statute  is  to  divest  thq 
title  of  the  former  owner,  and  to  vest  title  in  the  wrong- 
ful possessor,  the  statute  does  not,  it  appears,  trans- 
fer the  former  title,  but  the  wrongful  possessor  acquires 
an  entirely  new  title.^  Consequently  the  liability  on 
covenants  does  not  pass  to  the  new  owner.^"  But  a 
legal  right  of  a  proprietary  character,  such  as  an  ease- 
ment,^ ^  a  mortgage, ^^  or  presumably  a  right  of  entry,^^ 


W.  1038;  Long  v.  Lackawanna 
Coal  &  Iron  Co.,  233  Mo.  713,  136 
S.  W.  673;  Pratt  v.  Eby,  67  Pa. 
396;  Miller  v.  Cramer,  48  S.  C. 
282,  26  S.  E.  657;  Summers  v. 
Hively,  78  W.  Va.  53,  88  S.  E. 
608.  Contra,  Mays  v.  Blair,  120 
Ark.  69,  179  S.  W.  S31;  Hartley 
V.  James,  50  N.  Y.  38.  And  see 
Heller  v.  Cohen,  154  N.  Y.  299, 
48  N.  E.  527;  Adkins  v.  Gillespie, 
—Tex.—,  189  S.  W.  275. 

7.  Pendleton  v.  Alexander,  8 
Cranch,  462;  Clemmons  v.  Cox, 
116  Ala.  567,  23  So.  79;  Arring- 
ton  V.  Liscom,  34  Cal.  365;  Mick- 
ey V.  Barton  194  111.  446,  62  N.  E. 
802;  Cramer  v.  Clow,  81  Iowa, 
255,  9  L.  R.  A.  772,  47  N.  W.  59; 
Proprietors  of  Jeffries  Neck  Pas- 
ture V.  Inhabitants  of  Ipswich, 
153  Mass.  42,  26  N.  E.  239;  Pence 
V.  Miller,  140  Mich.  205,  103  N. 
W.  582;  Dean  v.  Goddard,  55 
Minn.  290,  56  N.  W.  1060;  Web- 
ster V.  City  of  Lincoln,  56  Neb. 
502,  76  N.  W.  1076;  Nash  v. 
Northwest  Land  Co.  15  N.  Dak. 
566,  108  N.  W.  792;  Hamilton  v. 
Fluornoy,  44  Ore.  97,  74  Pac.  483; 


Hatch  V.  Lusignan,  117  Wis.  428, 
94  N.  W.  332.  Contra,  McCoy  v. 
Johnson,  70  Md.  490,  17  Atl.  387; 
Contee  v.  Lyon,  19  D.  C.  207; 
Miller  v.  Robertson,  35  Can.  Sup. 
Ct.    80. 

8.  Sharp  v.  Blankenship,  59 
Cal.  288;  Bowen  v.  Preston,  48 
Ind.  367;  Trim  v.  McPherson,  7 
Cold.  (Tenn.)  15;  Grigsby  v. 
Peak,  57  Tex.  142;  Sprecker  v. 
Wakely,  11  Wis.  432.  See  Camp- 
bell V.  Holt,  115  U.  S.  620,  29  L. 
Ed.    483. 

9.  Price  v.  Lyon,  14  Conn. 
291;  Tichborne  v.  Weir,  67  Law 
Times  (N.  S.)  735;  Coal  Creek 
Consol.  Coal  Co.  v.  East  Ten- 
nessee Iron  &  Coal  Co.,  105  Tenn. 
563,   59    S.   W.   634. 

10.  Tichborne  v.  Weir,  67  Law 
Times    (N.  S.)    735. 

11.  Re  Nisbett  &  Potts  (1905) 
1  Ch.  391,  (1906)  1  Ch.  386;  Re- 
formed Church  V.  Schoolcraft, 
65    N.    Y.    134. 

12.  Fletcher  v.  Bird,  Fisher 
on   Mortgages,   Appendix. 

13.  See  Banning,  Limitations 
84,  85. 


§  511]  Adverse  Possession.  1981 

can  be  enforced  against  the  land  in  the  hands  of  its 
new  owner  as  of  the  old,  the  statute  operating  to  bar 
only  the  j^erson  M'ho  was  entitled  to  sue  on  account  of 
the  wrongful  possession, 

Chiaracter    of    estate.      The    question    of    the 

character  of  the  estate  acquired  by  the  wrongful 
possessor  is,  in  some  cases,  one  of  considerable  diffi- 
culty. The  common-law  rule  was  that  one  who  dis- 
seised another  acquired  an  estate  in  fee  simple, ^^  and 
this  regardless  of  whether  he  claimed  a  less  estate, ^° 
since  "wrong  is  unlimited  and  ravens  all  that  can  be 
gotten, "^'^  and  one  cannot  qualify  his  own  wrong.^"  The 
only  case  in  which  one  who  dispossessed  another  appears 
not  to  have  acquired  a  wrongful  fee  simple  was  when 
there  was  an  existing  particular  estate,  and  the  dis- 
possessor  claimed  merely  such  particular  estate.'**  And 
in  such  a  case,  if  the  particular  estate  was  of  a  chattel 
character,  there  was  no  disseisin,  but  only  a  disposses- 
sion. Apart  from  this  single  case  of  an  existing  particular 
estate  and  a  claim  by  the  dispossessor  restricted  thereto, 
it  appears  that  the  effect  of  a  wrongful  dispossession 
as  constituting  a  disseisin  and  as  so  conferring  an  es- 
tate in  fee  simple  by  wrong  was,  and  presumably  is,'" 
absolutely  independent  of  the  character  of  the  estate 
claimed  by  the  dispossessor,  or  of  whether  he  makes  any 
claim.  The  statement  occasionally  made  by  American 
judges  and  writers,  that  a  claim  of  a  fee  simjile,^''^  or 

14.  Litt,  §  519;  Pollock  &  19.  See  Wniianis,  Seisin,  7, 
Wright,  Possession,  94;  Watkins,  quoted  by  Professor  J.  B.  Ames, 
Conveyancing    (7th   Ed.)    78.  3    Harv.    Law    Rev.    at    p.    ;^23; 

15.  See  citations,  ante  §  504,  Lectures  on  Legal  History,  at  p. 
note  65.  173;    T.    Cyprian    Williams,    Esq., 

16.  Hobart     323.  in   51    Solicitors'   Journal,    p.    143. 

17.  Co.  Litt.  271a.  20.     Rlcard      v.      Williams,      7 

18.  Co.  Litt  271a  and  Butler's  Wheat.  (U.  S.)  59,  at  p.  107,  6 
note;  2  Preston,  Conveyancing,  L.  Ed.  221,  per  Story,  .1.;  Bedell 
321;  2  Preston,  Abstracts  of  Title,  v.  Shaw,  59  N.  Y.  46;  Bond  v. 
293.  O'Gara,    177    Mass.    139,    83    Am. 

2  R.  P.— 50 


1982  Real  Peoperty.  [^  511 

of  a  freeliold,^^  estate  is  necessary  to  a  disseisin  is,  it 
is  respectfully  submitted,  without  support  in  the 
older^books. 

From  what  has  been  said  in  the  preceding  para- 
graph, it  appears  that  the  effect  of  a  dispossession,  as 
conferring  a  w^'ongful  title  in  fee  simple  upon  the 
disseisor,  is  ordinarily  independent  of  whether  the  per- 
son actually  dispossessed  was  a  tenant  in  fee  simple 
or  merely  a  particular  tenant,  such  as  a  tenant  for  life 
or  years,  the  only  exception  being  when  the  disposses- 
sor  claims  merely  as  against  the  particular  tenant.  He 
has  a  fee  simple  title,  good  as  against  everybody  ex- 
cept the  particular  tenant  whom  he  has  dispossessed 
and  the  reversioner  or  remainderman.  After  the  statute 
has  run  against  the  former,  he  has  a  fee  simple  title 
good  as  against  everybody  except  the  latter,  and  if  he 
retains  possession  for  the  statutory  period  after  a  right 
of  action  has  accrued  to  the  remainderman  or  rever- 
sioner, his  fee  simple  title  becomes  valid  as  against 
everybody.-^  A  different  view  as  to  the  operation  of 
the  statute  of  limitations  in  such  a  case  has,  however, 
been  suggested,  that  the  dispossessor  acquires  success- 
ively, by  the  running  of  the  statutory  period  against  the 
successive  tenants,  an  estate  equal  in  quantum  to  the 
estate  of  each  tenant,^^  that,  for  instance,  if  A  is  tenant 
for  life,  with  remainder  to  B  for  life,  with  remainder  to 
C  in  fee  simple,  and  A  is  wrongfully  dispossessed,  the 
wrongful  possessor  would  acquire,  by  the  completion  of 
the  statutory  period  during  A's  life,  an  estate  for  the 
life  of  A,  by  the  completion  of  such  period  after  A's 
death  and  during  B's  life,  an  estate  for  the  life  of  B,  and 

St.   Refp.   265,   58   N.   E.   275,   per  270;   Dart,  Vendors  &  Purchasers 

Holmes,   C   J.;    editorial   note   12  (6th    Ed.)    464;    Lightwood,    Pos- 

Columbia  Law  Rev.  364.  session   of  Land,   275,   and   is   in- 

21.  Editorial  notes,  5  Columbia  dicated  in  Tichborne  v.  Weir,  67 
Law  Rev.  605;  22  Harv.  Law  Rev.  Law    Times    (N.    S.)    735. 

139.  23.     This    view    is    favored    in 

22.  This    view    is    asserted    in      Rankin    v.    McMurtry,    24    L.    R. 
1  Hayes,  Conveyancing   (5th  Ed.)      Ir.  297. 


§  511]  Adverse  Possession.  1983 

by  the  completion  of  such  period  after  B's  death,  an 
estate  in  fee  simple.  The  former  theory  would  seem  to 
be  preferable  from  the  standpoint  of  principle,  and  is 
certainly  more  in  accord  with  the  common  law  decisions 
upon  the  effect  of  disseisin. 

In  case  one  makes,  without  authority,  a  lease  of 
another's  land,  the  question  whether  the  lessee  will 
acquire  the  fee  simple  title  by  the  lapse  of  the  statutory 
period,  would  seem  ordinarily  to  depend  on  whether  the 
lease  was  in  the  name  of  the  true  owner.  If  it  was  in 
such  owner's  name,  the  lessee's  possession  is  not  hos- 
tile to  such  owner,  an}^  more  than  if  the  lease  had  been 
made  by  the  latter,  while  if  it  is  not  in  the  true  o\\Tier's 
name  the  lessee's  possession  would  ordinarily  be  hostile 
to  the  latter,  the  case  being  that,  before  referred  to,^* 
of  adverse  possession  by  a  tenant  in  behalf  of  liis  land- 
lord.^^  In  neither  case,  it  is  conceived,  should  the  fact 
that  the  possession  purported  to  be  under  a  lease  for 
years  have  the  effect  of  carving  out  of  the  fee  simple  an 
estate  for  years  in  favor  of  the  possessor.-'' 

24.  Ante,  §  501,  note  30.  version  or  remainder,  and  a  par- 

25.  But  it  has  been  decided  in  ticular  estate  cannot  be  created  by 
New  York  (Bedell  v.  Shaw,  59  claim  or  entry."  2  Preston,  Ab. 
N.  Y.  46;  Sanders  v.  Riedinger,  stracts  of  Title,  293.  But  in 
30  N.  Y.  App.  Div.  277,  51  N.  Y.  several  Mississippi  cases  it  Is 
Supp.  937,  164  N.  Y.  564,  58  N.  decided  that  if  one  enters  under 
E.  1092)  that  one  entering  under  an  invalid  lease,  made  without 
an  invalid  "tax  lease"  did  not  authority  in  the  name  of  the 
acquire  adverse  possession  as  county  for  a  term  of  ninety-nine 
against  the  owner,  for  the  reason  years,  possession  by  the  lessee 
that  he  asserted  no  claim  to  the  for  the  statutory  period  sives 
fee.  See  ante,  this  section,  note  him  a  right  to  retain  possession 
20.  until   the  end   of  the   term.     See 

26.  "If  a  man  enter  claiming  Brown  v.  Isaquena  County  Super- 
a  particular  estate,  when  in  point  visors,  54  Miss.  2.50;  Jones  v. 
of  fact  there  is  not  any  such  Madison  County,  72  Miss.  777,  18 
estate,  then  the  disseisin  is,  of  So.  87;  Warren  County  v.  Lanil)- 
necessity,  of  the  fee;  for  In  kin,  93  Miss  123,  22  L.  R.  A.  (N. 
things  in  esse  there  cannot  be  a  S.)  920,  46  So.  497.  See  note 
particular    estate    without    a    re-  in  22  Ilarv.  Law  itev.  138. 


1984  Real  Peofeety.  [§  511 
As   vesting  title   in  third   person.     Reference 


has  before  been  made  to  the  case  of  a  hostile  entry  on 
land  under  the  mistaken  impression  that  it  belongs  to 
the  government,  in  which  case,  by  the  weight  of  author- 
ity, the  statute  runs  against  the  rightful  owner.^'''  The 
question  then  arises  whether  the  statutory  bar  operates 
to  vest  the  title  in  the  person  in  possession  or  in  the 
government,  and  this  appears  to  depend  primarily  on 
whether  he  is  to  be  regarded  as  holding  on  behalf  of 
the  government,  or  on  his  own  behalf,  the  reasonable 
presumption  being  that  he-  holds  in  his  own  behalf.^* 
And  even  though  he  takes  and  holds  possession  in  be- 
half of  the  government,  a  wrongful  estate  cannot  be 
regarded  as  vested  in  the  government,  for  the  purpose 
of  being  perfected  by  the  statute  of  limitations,  unless 
the  government  in  some  way  indicates  its  assent  thereto, 
the  case  being  in  effect  that  of  a  disseisin  to  the  use  of 
another,  which  does  not  give  a  freehold  to  the  other 
until  the  other  agrees.^^ 

As  vesting  title  in  remainderman.     Although, 


as  above  stated,^*'  according  to  the  common  law  authori- 
ties, a  disseisin  has  the  effect  of  conferring  a  fee  simple, 
except  in  the  single  case  when  there  previously  existed 
a  particular  estate,  and  the  disseisor  claims  such  partic- 
ular estate  only,  it  may  occur,  according  to  modern 
decisions,  that  the  fee  simple  is  conferred  on  a  person 
other  than  the  person  in  wrongful  possession,  by  reason 
of  the  fact  that  the  person  in  possession  entered  under 
an  instrument  which  purported  to  give  him  a  life  estate 
only,  with  remainder  in  favor  of  such  other.  There 
are  several  decisions  to  the  effect  that  if  one  having  no 
title  undertakes  to  convey  or  devise  particular  land  to  A 
for  life  with  remainder  in  fee  simple  to  another,  and  A 

27.  Ante,   §   504,  note  82.  Disseisin   (E)    (G);    Bacon's  Abr. 

28.  See      editorial      notes,      14      Disseisin  (A). 

Harvard    Law    Rev.    374,    18    Id.  30.    Ante,    tliis    section,    notes 

380.  14-18. 

29.  Co.  Litt.  180b;  Viner's  Abr. 


^  511]  Advebse  Possession. 


1985 


enters,   and  the   statutory  period  expires  with  him  in 
possession,  the  statute  runs  in  favor  not  only  of  A  but 
also  of  the  remainderman  named.^i    In  other  words,  in 
such  a  case,  the  wrongful  estate  in  fee  simple  is  gained 
for  the  remainderman  and  not  for  the  life  tenant.    This 
view  has  been  based  upon  the  theory  of  estoppel,  and 
the  case  has  been  assimilated  to  that  of  the  estoppel  of 
a   tenant   to   deny  the   title   of  the   lessor.^^     Applying- 
such  an   analogy,  the   idea   would   seem  to  be  that"  the 
intended    life    tenant,    having    acquired    possession    by 
force  of  the  devise  or  conveyance,  as  a  lessee  acquires 
possession  by  force  of  the  lease,  he,  and  those  in  privity 
with  him,  are  precluded  from  asserting,  as  against  any 
person,   such  as   the   remainderman,  who   is  in  privity 
with  the  testator  or  grantor,  that  the  title  in  fee  was  at 
the  time  outstanding  in  another,  and  was  so  capable  of 
being  acquired  by  the  intended  life  tenant  by  force  of 
the   statute   of  limitations.     In  this   country'  the   same 
result  has  been  held  to  follow  in  the  case  of  a  convey- 
ance  or  devise  to  one  for  life  with   remainder  to  an- 
other in  fee  simple,  when  the  conveyance  or  devise  was 
invalid  or  inoperative  as  regards  the  particular  proji- 
erty,  not  by  reason  of  lack  of  title  in  the  grantor  or 
testator,  but  for  some  other  reason.''^     In  England,  on 
the  other  hand,  the  estoppel  has  not  been  applied  in  such 
case  as  against  the  intended  life  tenant,  for  the  i-easoii, 
apparently,  that  the  asserted  remainderman  cannot  be 
regarded  as  in  privity  with  the  grantor  or  testator,  and 
is   consequently  unable  to   assert  the  estoppel.-''"'     The 

31.  Board  v.  Board,  L.  R.  9  where  the  will  was  voidable  and 
Q.  B.  48;  Reynolds  v.  Trawick,  not  void.  Compare  28  Yale  Law 
— Ala.—,  78  So.  827;  Charles  v.  Journ.,  p.  2.'.4,  remarks  of  Pro- 
Pickens,  214  Mo.  212,  24  L.  R.  A.  fessor  Ballantine. 

(N.  S.)   1055,  112  S.  W  551.  33a.     Dalton        v.        Fitzgerald. 

32.  Board  v.  Board,  L.  R.  9  Q.  (1897),  1  Ch.  87;  Palno  v.  Jones, 
B.  48,  per  Blackburn,  J.  L.    R.    18    Eq.    320;    /Jyj   StriuRcrg 

33.  Hanson  v.  Johnson,  62  Ind.  Estate,  6  Ch.  U.  1;    In  re  Ander- 
25,    50    Am.    Rep.    199;    Anderson  son    (1905),  2  Ch,  70;   In  re  Ten- 
V.  Rhodes,  12  Rich.  Eq.  104.     See  nent's  Estate   (1913),  1   Ir.  280. 
Brown   v.    Brown,    82    Tenn.    253, 


1986  Real  Property.  [§  511 

English  view,  rather  than  that  asserted  in  this  country, 
harmonizes  with  the  common  law  rule  that  a  disseisin 
does  not  operate  to  create  a  i>articular  estate.  In 
order,  however,  that  the  estopiDel  operate  in  any  case  in 
favor  of  the  person  named  as  remainderman,  it  would 
seem  to  be  necessary,  as  a  recent  writer  has  well 
pointed  out,^^^  that  the  grantor  or  testator  have  been 
himself  in  possession,  since  if  he  was  not  in  possession, 
there  was  nothing  which  could  be  regarded  as  passing 
by  the  conveyance  or  devise,  so  as  to  create  a  piivity  in 
the  remainderman  named. 

As  between  husband  and  wife.     In  case  both 


husband  and  wife  are  upon  the  land  belonging  to  a 
third  person,  and  the  wife  alone  has  color  of  title,  the 
statute,  it  appears,  will  run  in  her  favor  rather  than  in 
favor  of  the  husband,  that  is,  the  possession  will  be 
presumed  to  accord  with  the  color  of  title.^^ 

As    against    bona    fide    purchaser.     One    who 

acquires  title  by  adverse  possession  for  the  statu- 
tory period  may,  it  has  been  decided,  assert 
such  title  as  against  a  bona  fide  purchaser  of  the  record 
title,  although  such  adverse  possessor  had  relinquished 
possession  previous  to  the  sale.^^  The  recording  acts 
protect  a  bona  fide  purchaser  only  as  against  a  prior 

33b,     Article        by        Professor  117     Wis.     428,     94     N.     W.     332. 

Henry    Winthrop    Ballantine,     28  And    See    Collins    v.    Lynch,    157 

Yale   Law   Journ.    at   pp.    224-235.  Pa.  St.  246,  37  Am.   St.  Rep.  723, 

This    appears    to    be    recognized  27  Atl.  721. 

by  Jessel,  M.  R.  in  Re  Stringer's  35.     Faloon    v.    Simhauser,    130 

Estate,   6   Ch.   D.   1.  111.    649,    22    N.    E.    835;     Schall 

34.     McLeod  v.  Bishop,  110  Ala.  v.  Williams  Valley  R.  Co.,  35  Pa. 

640,  20  So.  130;    Clark  v.  Gilbert,  St.  191;   MacGregor  v.  Thompson, 

39    Conn.  .96;    Meraman   v.    Cald-  7  Tex.  Civ.  App.  32,  26  S.  W.  649; 

■well,  8  B.  Mon.   (Ky.)    32;    Potter  East     Texas     Land     etc.     Co.     v. 

V.    Adams,    125    Mo.    118,    46    Am.  Shelby,    17    Tex.    Civ.    App.    685, 

St.  Rep.  478,  28  S.  W.  490;   Tem-  41  S.  W.  542;   Winters  v.  Powell, 

pleton  V.  Twitty,  88  Tenn.  595,  14  180  Ala.  425,  61  So.  96    isemble). 

S.    W.    435;    Holton    v.    Whitney,  See  Ridgeway  v.  Holliday,  59  Mo. 

30    Vt.    405;    Hatch    v.    Lusignan,  444. 


§  512]  Adverse  Possessiox.  1987 

instrument  which  might  have  been,  but  was  not,  re- 
corcled,^*"  and  there  is  no  obligation  upon  one  Nvho  has 
acquired  title  by  adverse  possession  to  retain  the  pos- 
session in  order  to  charge  a  subsequent  purchaser  with 
notice  of  his  rights.  But  if  one  in  wrongful  possession 
of  land,  before  the  end  of  the  limitation  period,  obtains 
a  conveyance  from  the  true  owner,  his  possession  should 
thereafter,  it  seems,  be  regarded  as  based  on  the  con 
veyance,  so  that,  if  he  fails  to  record  it,  a  subsequent 
hona  fide  purchaser  will  acquire  a  superior  title  al- 
though, if  the  person  in  possession  had  not  received  the 
conveyance  from  the  true  owner,  he  would,  by  tlie 
running  of  the  statute  of  limitations,  have  acquired  a 
title  superior  to  that  of  the  subsequent  hona  fide  \mv- 
chaser.^'  Having  obtained  a  deed  from  the  rightful 
owner,  his  possession  ceases  to  be  wrongful,  and  the 
statute  runs  only  in  favor  of  a  wrongful  possession. 

§  512.  Extent  of  possession.  As  a  general  rule, 
one  can  acquire  by  adverse  possession  so  great  an 
extent  of  land  only  as  is  covered  by  his  acts  of  actual 
posses,sion,  continued  through  the  statutory  period.^^**  It 
is,  however,  a  well-recognized  doctrine  in  this  country 
that  one  having  "color  of  title"  that  is,  claiming  under 
what  purports  to  be  a  valid  muniment  of  title,  al- 
though he  actually  occupies  a  part  only  of  the  tract 
covered  by  his  muniment  of  title,  is  to  be  regarded  as 
in  possession  of  the  whole  tract  for  the  purpose  of 
barring  the  entry  of  the  owner  after  the  lapse  of  1 1n- 
statutory  period,  *' constructive  possession,"  ns  it  is 
usually  termed,  of   the   part  not   actually   occupied    hv 

36.  Post  §   567.  915;       Garrison     v.     Sampson,     15 

37.  See  editorial  note,  26  Harv.  Cal.  93;  Mattes  v.  Hall,  21  Cal. 
Law  Rev.  762,  criticizing  Winters  App.  552,  132  Pac.  295;  Roberts 
V.  Powell,  180  Ala.  425,  61  So.  T.  Merwin,  80  Conn.  347,  6S 
96.  Atl."   377;    Tillman   v.   Bomar,    1.34 

38.  Bowles  v.  Lowery,  181  Ala.  Ga.    660,    68    S.    E.    504;     Bristol. 
603,    62     So.    107;     Langhorst    v.  v.     Carroll     County.     95     111.     84: 
Rogers,    88    Ark.    318,    114    S.    W.  Meade  v.  Ratliff.  133  Ky.  411.  i:t4 


1988 


Real  Peopekty. 


[§  512 


him.  As  a  result  of  this  doctrine,  the  owner  of  land 
who  fails  to  assert  his  rights  within  the  statutory  period 
as  against  one  in  adverse  possession  of  part  may  be 
deprived  of  the  whole  of  the  tract,  although  he  had  no 
reason  to  suppose  that  the  adverse  possession  was  under 
color  of  title. 

The  doctrine  referred  to  applies  not  only  when  pos- 
session is  taken  under  a  conveyance  which  is  invalid, 
either  for  want  of  title  or  capacity  in  the  grantor,  or 
for  w^ant  of  proper  formalities  in  the  execution  of  the 
instrument,"'^  but  also  when  it  is  taken  under  a  void  or 
voidable  decree  of  court,^''  and  generally  when  there 
is  what  is  known  as  a  ''paper  title."  There  is,  how- 
ever, considerable  question  as  to  whether  a  conveyance 
void  on  its  face  constitutes  "color  of  title"  for  this 
purpose,  or  for  the  purpose  of  the  short  limitation 
acts.^^     A  conveyance  which  does  not  contain  anv  suf- 


Am.  St.  Rep.  467,  118  S.  W.  271; 
Proprietors  of  Kennebeck  Pur- 
chase V.  Springer,  4  Mass.  416; 
Barber  v.  Robinson,  78  Minn. 
193,  80  N.  W.  968;  Allen  v.  Mans- 
field, 108  Mo.  343,  18  S.  W.  901; 
Anderson  v.  Meadows,  162  N.  C. 
400,  78  S.  E.  279;  Humphries  v. 
Huffman,  33  Ohio  St.  395;  Lars 
V.  Smith,  63  Ore.  206,  127  Pac. 
26:  Ege  v.  Medlar,  82  Pa.  St.  86; 
Langdon  v.  Templeton,  66  Vt. 
173,   28   Atl.   866. 

39.  Wright  v.  Mattison,  18 
How.  (U.  S.)  50,  15  L.  Ed.  280; 
Carter  v.  Chevalier,  108  Ala.  563, 
19  So.  798;  Noyes  v.  Dyer,  25 
Me.  468;  Hecock  v.  Van  Dusen, 
80  Mich.  359,  45  N.  W.  343; 
Miesen  v.  Canfleld,  64  Minn.  513, 
67  N.  W.  632;  Fugate  v.  Pierce, 
49  Mo.  447;  Ellington  v.  Elling- 
.ton,  103  N.  C.  54,  9  S.  E.  208; 
Swift  V.  Mulkey,  17  Ore.  532,  21 
Pac.    871;     Stull    v.    Rich    Patch 


Iron    Co.,    92    Va.    253,    23    S.    E. 
293. 

40.  Reedy  v.  Camfield,  159  111. 
254,  42  N.  E.  833,  Jones  v 
Thomas,  124  Mo.  586,  24  S.  W. 
76;  Bynum  v.  Thompson,  25  N. 
C.  578.  See  Brind  v.  Gregory, 
120  Cal.  640,  53  Pac.  25;  Salter 
V.  Salter,  80  Ga.  178,  12  Am. 
St.  Rep.  249,  4  S.  E.  391;  Wright 
V.  Stice,  172  111.  571,  51  N.  E.  71. 

41.  That  a  conveyance  void  on 
its  face  does  not  give  color  of 
title,  see  Redfield  v.  Parks,  132 
U.  S.  239,  33  L.  Ed.  327;  Larkin 
V.  Wilson,  28  Kan.  513;  Frique 
V.  Hopkins,  8  Mart.  (La.)  110; 
Fitschen  v.  Olsen,  155  Mich.  320, 
119  N.  W.  3;  Wafford  v.  McKinna, 
23  Tex.  36,  76  Am.  Dec.  53; 
Matthews  v.  Blake,  16  Wyo.  116, 
27  L.  R.  A.  339,  92  Pac.  242. 
Contra.  Reddick  v.  Long,  124 
Ala.  260,  27  So.  402;  Wilson  v. 
Atkinson,  77  Cal.  485,  11  Am.  St. 


§  512] 


Adverse  Possession. 


1989 


ficient  description  of  the  land  sought  to  be  conveyed  is 
necessarily  insufficient  as  color  of  title  for  the'  pur- 
pose of  constructive   possession.^- 

According  to  some  decisions  this  doctrine  of  con- 
structive possession  is  not  applicable  unless  the  person 
seeking  to  avail  himself  thereof  acquired  the  color  of 
title  in  the  honest  belief  that  the  instrument  was  ef- 
fective for  the  purpose  of  passing  title-*-'  and  further- 
more fraud  on  his  part  in  its  acquisition  has  been  re- 
garded as  depriving  him  of  the  right  to  assert  the 
doctrine.^*  It  is  not  clearly  apparent  why  the  effect  of 
the  instrument  as  showing  a  constructive  possession 
greater  than  the  actual  possession  should  be  regarded  as 
dependent  on  the  existence  of  a  belief  in  its  validitv 
or  a  lack  of  fraud  in  its  acquisition.''^ 


Rep.  299,  20  Pac.  66;  Barger  v. 
Hobbs,  67  111.  592;  Miesen  v. 
Canfield,  64  Minn.  513,  67  N.  W. 
632;  Power  v.  Kitching,  10  N.  D. 
254,  88  Am.  St.  Rep.  729,  86  N. 
W.  737. 

The  view  is  sometimes  taken 
that  a  conveyance  defective  on 
its  face  will  be  sufficient  as 
color  of  title  provided  only  the 
defect  is  such  that  a  person  un- 
learned in  the  law  would  have 
reason  to  consider  the  instru- 
ment valid.  Bloom  v.  Strauss, 
70  Ark.  483,  69  S.  W.  548,  72 
S.  W.  563;  De  Foresta  v.  Cast, 
20  Cal.  307,  38  Pac.  244;  Beverly 
v.  Burke,  9  Ga.  443.  54  Am.  Deo. 
351;  Ipock  V.  Gaskins,  161  N. 
C.  673,  77  S.  E.  843;  Burns  v. 
Stewart,  162  N.  C.  360,  78  S.  E. 
321. 

42.  Reddick  v.  Long.  124  Ala. 
260;  27  So.  402;  Ohio  &  M.  Ry. 
Co.  V.  Barker,  125  111.  303,  17  N. 
E.  797;  Bellows  v.  Jewell.  60  N. 
H.    420;    Jackson    v.    Woodruff,    1 


Cow.  (N.  Y.)  276,  13  Am.  Dec. 
525;  Davis  v.  Stroud,  104  N.  C. 
484,  10  S.  E.  666;  Humphries  v. 
Huffman,  33  Ohio  St.  395;  Ege  v. 
Medlar,  82  Pa.  St.  86;  Garvin  v. 
Garvin,  40  S.  C.  435,  19  S.  E.  74; 
Bassett  v.  Martin,  83  Tex.  339, 
18  S.  W.  587;  Blakey  v.  Morris, 
89  Va.  717,  17  S.  E.  126. 

43.  Walsh  V.  Hill,  38  Cal.  481; 
Reay  v.  Butler,  95  Cal.  206,  30 
Pac.  208;  Lee  v.  O'Quin.  103  Ga. 
355,  30  S.  E.  356;  Godfrey  v. 
Dixon  Power  &  Lighting  Co., 
228  111.  487.  81  N.  E.  1089;  Smith 
V.  Young,  89  Iowa,  338,  56  N.  W. 
506;  Foil  Ike  v.  Bond,  41  N.  J.  L. 
527;  Ege  v.  Medlar,  82  Pa.  St. 
86;  Texas  Land  Co.  v.  WHliams. 
51  Tex.  51;  Gregg  v.  Sayre,  8 
Pet.  (U.  S.)  244,  25;{,  8  L.  Ed. 
932. 

44.  Miller  v.  Rich,  204  III. 
444,   68   N.    E.    4S8. 

45.  See  editorial  note  23  Harv. 
Law  Rev.  at   p.  57. 


1990  Real  Peopeety.  [§  512 

In  order  that  this  doctrine,  giving  one  constructive 
possession  beyond  the  limits  of  his  actual  occupancy, 
may  apply,  the  part  of  the  land  not  actually  occupied 
by  him,  and  the  part  occupied,  must  belong  to  the  same 
person,  and  the  owner  of  land  is  not  affected  with  notice 
as  of  a  constructive  possession  of  his  land  by  the  fact 
that  it  is  included  in  a  conveyance  with  other  land  not 
belonging  to  him,  if  such  other  land  alone  is  occupied 
by  the  claimant.^^  Were  the  rule  otherwise,  the  owner 
of  land  might  be  deprived  thereof  by  force  of  the 
statute  of  limitations,  although  no  part  was  in  the  pos- 
session of  another,  and  there  was  consequently  no 
reason  for  asserting  his  title. 

The  fact  that  the  true  owner  is  in  actual  possession 
of  part  of  his  land  prevents  the  application,  in  favor  of 
another,  of  the  doctrine  of  constructive  possession  by 
color  of  title  as  to  the  land  not  occupied  by  either.^^ 
In  such  case  the  constructive  possession  of  the  true 
owner  takes  precedence  over  the  constructive  possession 

46.     Henry  v.   Brown,    143   Ala.  Coal     Creek    Min.    Co.    v.     Heck, 

446,    39    So.    325;    Hurdie    v.    In-  15    Lea    (Tenn.)    497;    Daniel    v. 

,  vestment    Guaranty     etc.    Co.,    81  Dayton  Coal  &  Iron  Co.,  132  Tenn. 

Ark.   141,  98   S.  W.  701;    KimbaU  501,  178  S.  W.  1187;    Word  v.  Box, 

V.    Stormer,    65    Cal.    116,    3    Pac.  66  Tex.  596,  3  S.  W.  93;    Green  v. 

408;    Wheatley   v.    San   Pedro,   L.  Pennington,  105  Va.  801,  54  S.  E. 

A.   &   S.   L.   R.  Co.,   169   Cal.   505,  877;  Robinson  v.  Lowe,  66  W.  Va. 

147  Pac.  135;    Tennis  Coal  Co.  v.  665,   66   S.  E.  1001. 
Sackett,    172    Ky.    729,    Ann.    Cas.  47.     Hunnicutt    v.    Peyton,    102 

1917E,  629,  190  S.  W.  130;  Walsh  U.  S.  333,  26  L.  Ed.  113;    Semple 

V.    Wheelwright,    96    Me.    174,    52  v.    Cook,    50    Cal.    26;    Wilkins   v. 

Atl.    649;    Turner   v.    Stephenson,  Pensacola    City    Co.,    36    Fla.    36, 

72  Mich.   409,  2  L.  R.  A.  277,  40  18    So.    20;     Harriss    v.    Howard, 

N.      W.      735;      Leavenworth      v.  126  Ga.  325,   55   S.  E.   59;    Peoria 

Reeves,  106  Miss.  722,  64  So.  660;  etc.    R.    Co.    v.    Tamplin,    156    111. 

Bailey   v.    Carleton,    12    N.    H.    9,  285,    40    N.    E.    960;     Hopson    v. 

37     Am.     Dec.     190;     Schmitt    v.  Cunningham,  161  Ky.  160,  170   S. 

Traphagen,  73  N.  J.  Eq.  399,  133  W.   522;    Stearns   Coal   &  Lumber 

Am.    St.    Rep.    739,    69    Atl.    189;  Co.    v.    Boyatt,    168    Ky.    Ill,    181 

Lewis  V.  Covington,  130  N.  C.  541,  S.  W.  962;    Schlossnagle  v.  Kolb, 

41  S.  E.  677;   Hicklin  v.  McClear,  97   Md.   285,    54   Atl.    1006:    Bellis 

18   Ore.    126,   22    Pac.    1057;    Hole  v.  Bellis,  122  Mass.  414;    Bradley 

v.    Rittenhouse,    25    Pa.    St.    491;  v.    West,    60    Mo.    33;     Benne    v. 


§  512  J 


Adverse  Possession, 


1991 


of  the  trespasser.^^  And,  in  spite  of  occasional  state- 
ments to  the  contrary,^^  this  would  seem  to  be  so,  regard- 
less of  whether  the  constructive  possession  of  the 
tresjDasser  commenced  before  or  after  the  constructive 
possession  of  the  true  owner.^*^ 

The  land  in  actual  possession  must  adjoin  that  of 
which  Qonstructive  possession  is  claimed,^^  and  they 
must,  according  to  some  decisions,  be  included  within 
one  description  in  the  instrument  under  which  the 
claim  is  made,  and,  if  they  are  described  or  referred  to 
as  separate  tracts  or  lots,  it  is  immaterial  that  they  are 
both  included   in   one    conveyance. ^^      Occasionallv    the 


Miller,  149  Mo.  228,  50  S.  W.  824; 
Schmitt  V.  Traphagen,  73  N.  J. 
Eq.  399,  133  Am.  St.  Rep.  739,  69 
Atl.  189;  Hall  v.  Powel,  4  Serg. 
&  R.  (Pa.)  456,  8  Am.  Dec.  722; 
Eenneker  v.  Warren,  17  S.  C. 
139;  Sequatchie  &  South  Pitts- 
burg Coal  &  Iron  Co.  v.  Tennessee 
Coal,  Iron  &  RaUroad  Co.,  131 
Tenn.  221,  174  S.  W.  1122;  Jones 
V.  Coal  Creek  Min.  &  Mfg.  Co., 
133  Tenn.  183,  180  S.  W.  991; 
Claiborne  v.  Elkins,  79  Tex.  380, 
15  S.  W.  395;  Langdon  v.  Temple- 
ton,  66  Vt.  173,  28  Atl.  866;  Fry 
V.  Stowers,  98  Va.  417,  36  S.  E. 
482. 

48.  But  in  North  Carolina  the 
constructive  possession  of  the 
true  owner  is  denied  this  effect. 
McLean  v.  Smith,  106  N.  C.  172, 
11  S.  E.  184;  Currie  v.  Gil- 
christ, 147  N.  C.  648,  61  S.  E. 
146;  Simmons  v.  Defrance  Fox 
Co.,    153   N.   C.    261,   69    S.   E.    146 

49.  Fox  V.  Hinton,  4  Bibb. 
(Ky.)  55;  Kentucky  Land  &  Im- 
migration Co.  V.  Reynolds,  22 
Ky.  L.  Rep.  1389.  60  S.  W.  635: 
Richie  v.  Owsley,  143  Ky.  1,  135 
S.  W.  439;  Miniard  v.  Napier.  167 
Ky.   208,   180   S.   W.   .363;    Stull   v. 


Rich  Patch  Iron  Co.,  92  Va.  253, 
23  S.  E.  293;  Garrett  v.  Ramsey. 
26   W.  Va.   345,   360    idictu7n). 

50.  Hunnicutt  v.  Peyton,  102 
U.  S.  333,  26  L.  Ed.  113;  Semple 
V.  Cook,  50  Cal.  26;  Altemus  v. 
Long,  4  Pa.  St.  254,  45  Am.  Dec. 
688;  Ament  v.  Wolf,  33  Pa.  St. 
331;  Creech  v.  Jones,  5  Sneed 
(Tenn.)  631;  Evitts  v.  Roth,  61 
Tex.  81;  Combes  v.  Stringer,  106 
Tex.  427,  167  S.  W.  217.  See 
note    6    Columbia   Law    Rev.    583. 

51.  Brown  v.  Bocquin,  57  Ark. 
97,  20  S.  W.  813;  Georgia  Pine 
Inv.  &  Mfg.  Co.  V.  Holton,  94  Ga. 
551,  20  S.  E.  434;  Stephenson  v. 
Doe,  8  Blackf.  (Ind.)  508.  46  .4m. 
Dec.  489;  Louisville  Property  Co. 
V.  Lawson,  156  Ky.  288.  160  S.  W. 
1034;  Farrar  v.  Eastman,  10  Me. 
191;  Herbst  v.  Merrifield.  133  Mo. 
267.  34  S.  W.  571;  Wilson  v. 
McEwan,  7  Ore.  85.  Lands  have 
been  held  to  he  contiguous  within 
this  requirement  wlion  inoroly 
a  corner  of  one  coincides  with 
a  corner  of  the  other.  Parsons 
v.  Dlls,  172  Ky.  774.  Ann.  Cas. 
191SE.  796.  189  S.  W.  1158. 

52.  Grimes  v.  Ragland.  28  Ga. 
123;     Rnwe    v.    TTenderson    Navnl 


1992 


Real  Property. 


[§  512 


criteriou  in  this  regard  has  been  stated  to  be  whether 
the  instrument  shows  that  the  two  pieces  adjoin  one 
another.^^ 

In  some  states  there  is  a  restriction  upon  the  ap- 
plication of  the  rule  of  constructive  possession,  to  the 
effect  that  it  will  apply  only  when  the  land  claimed 
by  reason  of  constructive  possession  is  such,  in  char- 
acter and  extent,  that  its  use  in  connection  with  the 
land  actually  occupied  would  be  in  accord  with  the  cus- 
tom of  the  country.'^^  In  other  states  no  such  restriction 
upon  the  application  of  the  rule  is  recognized,  it  being 
only  necessary  that  the  actual  possession  be  of  a  visible 
character,  however  small  it  may  he  in  extent  in  com- 
parison with  the  land  claimed.^^ 


stores  Co.,  143  Ga.  756,  85  S.  E. 
917;  Hornblower  v.  Banton,  103 
Me.  375,  125  Am.  St.  Rep.  300, 
69  Atl.  568;  Morris  v.  McClary, 
43  Minn.  346,  46  N.  W.  238; 
Den  d.  Carson  v.  Mills,  18  N.  C. 
546,  30  Am.  Dec.  143;  Doe  d. 
Laflin  v.  Cobb,  46  N.  C.  406,  62 
Am.  Dec.  173;  Willamette  Real 
Estate  Co.  v.  Hendrix,  28  Ore. 
485,  52  Am.  St.  Rep.  800,  42  Pac. 
514;  Camp  v.  Riddle,  128  Tenn. 
294,  Ann  Cas.  1915C,  145,  160  S. 
W.  844;  Montgomery  v.  Gunther, 
81  Tex.  320,  16  S.  W.  1073.  Contra, 
Johnson  v.  Simerly,  90  Ga.  612, 
16  S.  E.  951;  Dills  v.  Hubbard,  21 
111.  328;  Parsons  v.  Dills,  159 
Ky.  471,  167  S.  W.  415,  172  Ky. 
774,  Ann.  Cas.  1918E,  796,  189  S. 
W.  1158;  Broiigher  v.  Stone,  72 
Miss.  647,  17  So.  509;  Roller  v. 
Armentrout,  118  Va.  173,  86  S. 
E.  906;  Webb  v.  Richardson,  42 
Vt.   465. 

53.  Griffin  v.  Lee,  90  Ga.  224, 
15  S.  E.  810;  Den  d.  Carson  v. 
Mills,  18  N.  C.  546,  30  Am.  Dec. 
143. 


54.  Louisville  etc.  R.  Co.  v. 
Gulf  of  Mexico  Land  etc.  Co.,  82 
Miss.  188,  33  So.  845,  100  Am.  St. 
Rep.  627;  Jackson  v.  Woodruff,  1 
Cow.  (N.  Y.)  276;  Simpson  v. 
Downing,  23  Wend.  (N.  Y.)  316; 
Thompson  v.  Burhans,  61  N.  Y. 
52;  Paine  v.  Hutchins,  49  Vt.  314; 
Pepper  v.  O'Dowd,  39  Wis.  538 
(statute).  See  Zirngibl  v. 
Calumet  &  C.  Canal  &  Dock  Co., 
157  111.  430,  42  N.  E,  431;  Turner 
V.  Stephenson,  72  Mich.  409,  2  L. 
R.  A.  277,  40  N.  W.  735;  Murphy 
V.  Doyle,  37  Minn.  113,  33  N.  W. 
220;  Chandler  v.  Spear,  22  Vt. 
388. 

55.  Marietta  Fertilizer  Co.  v. 
Blair,  173  Ala.  524,  56  So.  131; 
Hicks  V.  Coleman,  25  Cal.  122, 
85  Am.  Dec.  103;  Furgerson  v. 
Bagley,  95  Ga.  516,  20  S.  E.  241; 
Taliaferro  v.  Butler,  77  Tex.  578, 
14  S.  W.  191.  See  6  Columbia 
Law  Rev.  5S3,  for  a  criticism  of 
the  New  York  rule.  See  also 
Doe  d.  Lenoir  v.  South,  32  N.  Car. 
237. 


§  512]  Adverse  Possession.  1993 

AVlien  a  person  having  color  of  title  to  a  tract  of 
land  conveys  a  part  of  such  tract  to  another,  who  takes 
possession  of  that  part  and  no  more,  such  possession 
of  a  part  by  the  grantee  is  not  equivalent  to  possession 
by  the  grantor,  for  the  purpose  of  giving  the  latter 
constructive  possession  of  the  balance. ^"^  But  if  the 
person  having  color  of  title  to  a  tract  makes  a  lease  of 
part  of  the  tract,  and  the  lessee  takes  possession  of 
that  part,  the  possession  of  the  lessee  in  behalf  of  the 
lessor  \vill,  by  the  weight  of  authority,  be  regarded  as 
extending  to  the  whole  tract.^''' 

Minerals  in  the  land.    The  question  has  quite 

frequently  arisen,  under  what  circumstances  does  the 
statute  of  limitations  run  as  regards  rights  in  minerals 
beneath  the  surface  of  land.  There  exists  in  this  con- 
nection a  primary  distinction  between  the  case  in  which 
the  ownershij)  of  the  surface  of  the  land  is  not  already 
separated  from  that  of  the  minerals,  and  that  in  Avhicli 
it  is  so  separated. 

If  one  person  owns  both  the  surface  of  the  land 
and  the  minerals  thereunder,  and  another  takes  wrong- 
ful possession  of  the  surface,  his  actual  possession  of 
the   surface  is  ordinarily  extended  by  construction  to 

56.  Trotter  v.  Cassaday,  3  A.  1066);  Knorr  v.  Raymond,  73  Ga. 
K.  Marsh,  365,  13  Am.  Dec.  183;  749;  Williams  v.  Ballance,  23  111. 
Cochran  v.  Linville  Imp.  Co.,  127  193,  74  Am.  Dec.  187;  Murphy  v. 
N.  Car.  386,  37  S.  E.  496;  Jones  Comm.  187  Mass.  361,  73  N.  E.  524 
V.  Chiles,  2  Dana  (Ky.)  25;  Wil-  (semble) ;  Heinemann  v.  Bennett, 
lamette  Real  Estate  Co.  v.  Hen-  144  Mo.  113,  45  S.  W.  1092;  Ruf- 
drix,  28  Ore.  485,  42  Pac.  514,  fin  v.  Overby,  105  N.  C.  78,  11  S. 
52  Am.  St.  Rep.  800;  Chandler  E.  251;  Cochran  v.  Linville  Imp. 
Rushing,  38  Tex.  591;  Sharpe  v.  Co.,  127  N.  C.  386,  37  N.  E.  496; 
Shenandoah  Furnace  Co.,  100  Bowles  v.  Brlce,  66  Tex.  724.  2 
Va.  27,  40  S.  E.  103.  S.    W.    729.      Contra,    MaasenKill 

57.  Zundel  v.  Baldwin,  114  Ala.  v.  Bayles,  11  Humph.  (Tenn.) 
328,  21  So.  420;  Wheeler  v.  Foote,  lU;  Texas  Land  Co.  v.  Williams. 
80  Ark.  485,  97  S.  W.  447  (dis-  51  Tex.  61;  Walker  v.  Knox, 
tinguished  in  .Tohnson  &  Burr  v.  -Tex.  Civ.  App.— ,  191  S.  W. 
Elder,    92     Ark.     :'.n,     I'/l     S.     W.  730. 


1994  Real  Propeety.  [^  512 

the  minerals  beneath  the  surface, ^^  and  if  the  statute 
runs  against  the  rightful  owner  as  regards  the  surface 
it  also  runs  as  regards  the  minerals. ^^  It  has  been 
decided  that  the  running  of  the  statute  in  such  case  as 
regards  the  minerals  is  not  aifected  by  the  fact  that 
the  wrongful  possessor  undertakes  to  convey  the  miner- 
als alone  to  another,  who  does  not  take  possession,  the 
continued  possession  of  the  surface  by  the  grantor  in 
such  case  being  regarded  as  extending  to  the  minerals 
in  behalf  of  the  grantee.^*^  And  conversely  it  was  held 
in  the  same  state  that  if  one  who  had  taken  wrongful 
possession  of  the  land  conveyed  the  surface,  retaining 
the  minerals,  the  subsequent  possession  of  the  surface 
by  the  grantee  extended  to  the  minerals  in  behalf  of 
the  grantor.^^*^  But  the  wrongful  possession  of  the 
surface  does  not  extend  by  construction  to  the  minerals, 
if  the  possession  was  originally  taken  under  color  of 
a  conveyance  which  expressly  excepted  the  minerals.^ ^ 
And  it  has  been  decided  that,  when  a  company  was  min- 
ing part  of  the  minerals  contained  in  a  tract  belonging 
to  it,  but  not  that  part  of  the  minerals  beneath  the 
portion  of  the  surface  of  which  defendant  had  wrongful 
possession,  defendant,  by  the  lapse  of  the  statutory 
period,  although  he  acquired  title  to  the  portion  of  the 
surface  of  which  he  had  possession,  did  not  acquire 
title  to  the  minerals  beneath  such  portion  of  the  sur- 
face, he  having  been  fully  informed  as  to  the  operations 

58.  See  Armstrong  v.  Caldwell,  however,  overruled  by  Northcut 
53  N.  Y.  284;  editorial  note  10  v.  Church,  135  Tenn.  541,  188  S. 
Columbia  Law  Rev.  70.  W.  220. 

59.  Baker  v.  Clark,  128  Cal.  60a.  Moore  v.  Empire  Land 
181,  60  Pac.  677;  Davis  v.  Shep-  Co.,  Ala.,  61  So.  940.  See  editor- 
herd,  31  Colo.  141,  72  Pac.  57;  ial  notes  24  Harv.  Law  Rev.  582, 
Bradley  v.  Johnson.  11  Idaho.  689,  27   Id.    173. 

83   Pac.   927.  61.     Louisville    v.    Nashville    R. 

60.  Black  Warrior  Coal  Co.  v.  Co.,  136  Ala.  156,  96  Am.  St.  Rep. 
West,  170  Ala.  346,  54  So.  200;  17,  33  So.  896.  See  editorial  note 
McBurney  v.  Glenmary  Coal  &  10  Columbia  Law  Rev.  70,  and 
Coke   Co.,   121   Tenn.    275,    118   S.  cases    cited,   post,   note    64. 

W.    220.      The    latter    case    was. 


§  512]  Adverse  Possession".  1995 

of  the  company,  and  that,  by  such  operations,  the  com- 
pany had  in  effect  made  a  severance  of  the  minerals 
from  the  surface,  analogous  to  the  severance  or  separa- 
tion of  ownership  referred  to  in  the  next  parag-raph.'"'- 
This  theory  of  severance  by  the  working  of  the  mineral 
deposits  is  somewhat  obscure,  and  the  same  result 
might,  it  is  submitted,  have  been  attained  on  the  theory, 
above  referred  to,  that  actual  possession  is  not  ex- 
tended by  construction  as  against  the  rightful  owner  in 
possession  of  part  of  his  land. 

If  the  ownership  of  the  minerals  becomes  separated 
from  that  of  the  surface,  the  subsequent^^  possession  of 
the  surface  owner  is  not  regarded  as  extending  to  the 
minerals,  so  as  to  give  him  title  thereto  under  the 
statute,  even  though  the  owner  of  the  minerals  makes 
no  attempt  to  remove  the  minerals.^^  The  two  properties 
are  entirely  distinct  and  there  is  no  more  reai^on  that 
the  owner  of  one  property  should  be  regarded  as  in 
wrongful  possession  of  the  other  than  if  the  ])lane 
by  which  they  are  separated  was  vertical  instead  of 
horizontal.  And  in  order  that  the  surface  owner 
may  be  regarded  as  in  possession  of  the  minerals, 
so  that  the  statute  may  run  in  his  favor  with  I'eference 
thereto,  he  must  conduct  mining  operations  with  such 

62.  Delaware  &  Hudson  Canal  167  Pac.  1025;  Crowe  Coal  &  Miu- 
Co.  V.  Hughes,  183  Pa.  66,  38  L.  ing  Co.  v.  Atkinson,  85  Kan.  357, 
R.  A.  826,  38  Atl.  568,  63  Am.  Ann.  Cas.  1912D,  1196,  116  Pac. 
St.  Rep.  743.  499;     Marvin     v.     Brewster     Iron 

63.  If  the  separation  of  own-  Mining  Co.,  55  N.  Y.  538;  Gill  v. 
ership  does  not  occur  until  after  Fletcher,  74  Ohio  St.  295,  113  Am. 
the  taking  of  wrongful  possess-  St.  295,  113  Am.  St.  Rep.  962,  78 
ion  of  the  surface,  it  does  not,  N.  E.  433;  Kingsley  v.  Hillside 
it  has  been  decided,  prevent  the  Coal  &  Iron  Co.,  144  Pa.  613,  23 
running  of  the  statute  as  to  the  Atl.  250;  Armstrong  v.  Caldwell, 
minerals  as  well  as  the  surface.  53  Pa.  St.  284;  Murray  v.  Allred, 
Finnegan  v.  Stineman,  5  Pa.  Sup-  100  Tenn.  100.  66  Am.  St.  Rep. 
er,    Ct.    124.  740,  39  L.  R.  A.  249.  43  S.  W.  355; 

64.  Birmingham  Fuel  Co.  v.  Northoutt  v.  Cliurch.  135  Tenn. 
Boshell,  190  Ala.  597,  67  So.  403;  541,  188  S.  W.  220,  Ann  Cus. 
Crandall   v.    Goss.    30    Idaho,   661,  1918B,  545;    Morlson  v.  American 


1996  Eeal  Peopeety.  [§  513 

a  degree  of  continuity  as  accords  with  the  nature  of 
the  business,  and  in  such  a  way  as  will  indicate  his 
intention  of  exclusive   appropriation.^^ 

If,  after  the  o\vnership  of  the  minerals  has  be- 
come separated  from  that  of  the  surface,  a  third  per- 
son takes  possession  of  the  minerals,  the  statute  will 
run  in  his  favor  as  regards  the  minerals,^^'  if  his 
possession  is  not  only  adverse,  but  also  visible  and 
notorious.''"  But  if,  after  the  ownership  of  the  miner- 
als has  become  separated  from  that  of  the  surface,  a 
third  person  takes  wrongful  possession  of  the  sur- 
face, his  possession  does  not  extend  to  the  minerals, 
so  as  to  enable  him,  by  the  running  of  the  statutory 
period,  to  acquire  title  thereto.*'^ 

§  513.  Particular  relations —  (a)  Landlord  and  ten- 
ant. Possession  for  the  statutorj^  period  by  the  tenant 
under  a  lease  is,  it  is  agreed,  not  ordinarily  suflBcient 
to    confer    title    upon    him    as    against    his    landlord.''^ 

Ass'n,   110  Va.   91,   65    S.   E.   469;  69.     Alabama    State    Land    Co. 

Wallace   v.    Elm   Grove   Coal    Co.,  v.   Kyle,    99   Ala.    474,   13    So.   43; 

58  W.  Va.  449,  6  Ann.  Cas.  140,  52  Rigg  v.   Cook,   9   111.   336;    Pilaris 

S.  E.  485.  V.    Jones,    122   Mo.    125,    26    S.   W. 

65.  Hooper  v.  Bankhead,  171  1032;  Gwynn  v.  Jones'  Lessee,  2 
Ala.  626,  54  So.  549;  Gordon  v.  Gill  &  J.  173;  Lyebrook  v.  Hall, 
Park,  219  Mo.  600,  117  S.  W.  1163,  V3  Miss.  509,  19  So.  348;  Carson 
119  Am.  St.  Rep.  802;  Armstrong  v.  Broady,  56  Neb.  648,  73  Am. 
V.  Caldwell,  53  Pa.  284.  See  St.  Rep.  691,  77  N.  W.  80;  Le- 
edltorial  notes,  11  Columbia  Law  port  v.  Todd,  32  N.  J.  L.  124; 
Rev.  673,  26  Harv.  Law  Rev.  555.  Jackson   v.   Cams,   20   Johns.    (N. 

66.  Catlin  Coal  Co.  v.  Lloyd,  V.)  301;  Whiting  v.  Edmunds, 
176   111.   275,  52   N.  E.   144.  9i  N.  Y.  309;    Doherty  v.  Matsell, 

67.  Pierce  v.  Barney,  209  Pa.  119  N.  Y.  646,  23  N.  E.  994;  Tay- 
132,  58  Atl.  152;  Huss  v.  Jacobs,  lor  v.  Kelly,  56  N.  C.  (3  Jones 
210  Pa.  145,  59  Atl.  1904.  See  Eq.)  240;  SchuylkiU  &  D.  Imp. 
French  v.  Lansing,  73  N.  Y.  Misc.  &  R.  Co.,  58  Pa.  304;  Nessley  v. 
80,  132  N.  Y.  Supp.  523.  Ladd,    29    Ore.    354,    45    Pac.    904 

68.  Catlin  Coal  Co.  v.  Lloyd,  Duke  v.  Harper,  6  Yerg.  (Tenn.) 
180  111.  398,  72  Am.  St.  Rep.  216,  280,  27  Am.  Dec.  462;  Flanagan 
54  N.  E.  214;  Morelaud  v.  H.  v.  Pearson,  61  Tex.  302;  Sherman 
C.  Frick  Coke  Co.,  170  Pa.  St.  v.  Champlain  Transportation  Co., 
33.   32  Atl.   634.  31  Vt.  162;   Emerick  v.  Tavenner, 


§  513]  Advebsb  Possession.  1997 

The  tenant's  possession,  taken  under  the  lease,  in- 
volves a  recognition  of  the  landlord's  title  in  rever- 
sion, and  is  consequently  not  adverse  or  hostile  to  the 
latter.  If,  however,  one  becomes  tenant  of  another 
without  being  aware  of  the  fact,  there  is  no  recogni- 
tion by  him  of  the  other's  title,  and  his  possession  is 
consequently  adverse,  so  as  to  cause  the  statute  to  run 
in  his  favor,  provided  only  the  landlord  has  no  reason 
to  suppose  the  possession  to  be  otherwise.  If,  for 
instance,  one  takes  possession  by  virtue  of  an  invalid 
conveyance  in  fee  simple,  even  an  oral  gift,  under 
the  impression  that  it  is  a  valid  conveyance,  he  is 
prima  facie  a  tenant  at  will  under  his  grantor  or 
donor,'^*'  but  his  possession  is  nevertheless,  in  the  ordi- 
nary case,  adverse  to  the  latter."^  And  if  one  takes 
possession  under  a  conveyance  which  he  supposes  to 
give  him  a  fee  simple  estate,  but  by  reason  of  lack  of 
form  gives  him  a  life  estate  merely,  the  possession  is 
to  be  regarded  as  adverse  to  his  grantor,  so  that  the 
statute  will  ordinarily  commence  to  run  in  favor  of 
those  claiming  under  him,  so  soon  as,  by  reason  of 
the  expiration  of  the  life  estate,  the  landlord  has  a 
right  of   action  to   recover  possession. '- 

Even  though  the  landlord  has  a  right  to  enforce 
a  forfeiture  for  breach  of  an  express  condition,  he  is 
under  no  obligation  so  to  do,  and  the  statute  does  not 
commence  to  run  by  reason  of  the  occurrence  of  a  cause 
of  forfeiture. '^^  Since  the  statute  does  not  rim  even 
afer  the  term  has  come  to  an  ond,'^  it  could  hardly  run 
merely  by  reason  of  a  right  to  bring  tlie  term  to  an 
end. 

9   Gratt.    (Va.)    220,   58   Am.   Dec.  449,   40   So.   865.     In  New   Haven 

217;    Swann  v.  Young,  36  W.  Va.  Trust  Company  v.  Camp,  8l  Conn. 

57.  539,  71  Atl.  788,    it  appears  to  be 

70.  Ante,  §  61(a).  held    that    the    statute    begins    to 

71.  Post,  §  513(e).  run    even    before    the    life    estate 

72.  Jackson  v.  Harsen,  7  Cow.  Is  out  of  the  way. 

(N.    Y.)    323,    17    Am.    Dec.    517;  73.     Doe    v.     Danvers,    7     East 

Henley  v.  Wilson,  77  N.  Car.  216.  299;   Gwynn  v.  .Tones,  2  Gill  &  J. 

See   Breland    v.    O'Neal,    88    Miss.  (.Md.)    173. 
2  R.  P.— 51 


1998 


Eeal  Pbopeety. 


[§  5L' 


It  has  been  frequently  asserted  that,  although  the 
tenant's  possession  is  prima  facie  not  adverse  to  the 
landlord,  it  may  become  adverse  by  reason  of  his  open 
repudiation  of  the  tenancy,  and  notice  thereof  brought 
home  to  the  landolrd.''^^  The  repudiation  of  the  tenancy 
nmst,  it  has  been  said  be  "clear,  positive,  and  con- 
tinued,"'^" and  the  landlord  is  not  affected  by  the 
repudiation  of  the  tenancy,  even  though  this  takes  the 
form  of  an  attornment  to  another,'"  unless  and  until 
notice  thereof  is  brought  home  to  him."'^  Express 
notice   is   not    necessary,  it   being   sufficient   that   he  in 


74.  Post,  this  subsection,  note 
90. 

75.  Willison  v.  Watkins,  3  Pet. 
43;  Ponder  v.  Cheeves,  104  Ala. 
307,  16  So.  145;  Rigg  v.  Cook,  9 
111.  336,  46  Am.  Dec.  462;  Austin 
V.  Wilson,  46  Iowa,  362;  Patter- 
son V.  Hansel,  4  Bush  (Ky.) 
654;  Sanscrainte  v.  Torongo,  87 
Mich.  69,  49  N.  W.  497;  Meridian 
Land  &  Industrial  Co.  v.  Ball, 
68  Miss.  135,  8  So.  316;  Doherty 
V.  Matsell,  119  N.  Y.  646,  23  N. 
E.  944;  Nessley  v.  Ladd,  29  Ore. 
354,  45  Pac.  904;  McGinnis  v. 
Porter,  20  Pa.  80;  Duke  v.  Har- 
per, 6  Yerg.  (Tenn.)  280,  27  Am. 
Dec.  462;  Reusens  v.  Lawson, 
91  Va.  226,  21  S.  E.  347;  Swann 
V.  Thayer,  36  W.  Va.  46,  14  S.  E. 
423. 

76.  Morris  v.  Wheat,  H  App. 
Dist.  Col.  201;  Rigg  v.  Cook,  9 
111.  336,  46  Am.  Dec.  462;  Wilkins 
V.  Pensacola  City  Co.,  36  Fla. 
36,  18  So.  20;  Nessley  v.  Ladd,  29 
Ore.    354,    45    Pac.    904. 

77.  Doe  V.  Clayton,  81  Ala.  391. 
2  So.  24;  De  Jarnette  v.  McDan- 
lell,  93  Ala.  215,  9  So.  570; 
Camden  Orphan  Soc.  v.  Lockhart, 
2  Mull.  Law    (S.  C.)    84.     Contra, 


semble,  Holtzman  v.  Douglas,  168 
U.  S.  278,  42  L.  Ed.  466. 

Occasionally  it  appears  to  be 
asserted  that  the  tenant's  attorn- 
ment to  another  cannot  start  the 
running  of  the  statute  as  against 
the  landlord.  Dausch  v.  Crane, 
109  Mo.  323,  19  S.  W.  61;  Fowler 
V.  Simpson,  79  Tex.  611,  23  Am. 
St.  Rep.  370,  15  S.  W.  682.  This 
does  not  accord  with  the  decisions 
that  the  tenant's  possession  be- 
comes adverse  if  he  repudiates 
the  tenancy  and  so  informs  the 
landlord. 

78.  Willison  v.  Watkins,  3  Pet. 
(U.  S.)  43;  Le  Croix  v.  Malone, 
157  Ala.  434,  47  So.  725;  Wilkins 
V.  Pensacola  City  Co.,  36  Fla.  36. 
18  So.  20;  Farrow's  Heirs  v.  Ed- 
mundson,  4  B.  Mon.  (Ky.)  605, 
41  Am.  Dec.  250;  Leport  v.  Todd, 
32  N.  .1.  L.  124;  Campbell  v. 
Shipley,  41  Md.  81;  Holman  v. 
Bonner,  63  Miss.  131;  Greenwood 
V.  Moore,  79  Miss.  201,  30  So. 
609;  Hamilton  v.  Boggess,  63 
Mo.  233;  Ross  v.  McManigal,  61 
Neb.  90,  84  N.  E.  610;  Nesley  v. 
Ladd,  29  Ore.  354,  45  Pac.  904; 
McGinnis  v.  Porter,  20  Pa.  80; 
Whaley  v.   Whaley,   1   Speer   Law 


'^  513]  Adverse  Possessiox.  1991) 

some  way  acquires  knowledge  of  the  tenant's  action."'' 
And  according  to  some  decisions  lie  is  chargeable  witli 
notice  by  reason  of  the  open  and  notorious  character 
of  the  repudiation  of  the  tenancy.^*^ 

Since  the  statute  of  limitations  cannot  commence 
to  run  until  there  is  a  right  of  action  in  favor  of  the 
rightful  owner,  it  follows  that  the  doctrine  above  re- 
ferred to,  that  the  repudiation  of  the  tenancy  starts 
the  running  of  the  statute,  necessarily  involves  tlie 
assumption  that  such  repudiation  gives  a  right  to  the 
landlord  to  assert  a  forfeiture  of  the  tenant's  estate, 
and  there  are  ciuite  a  number  of  decisions  that  it  does 
give  such  right,* ^  In  a  few  jurisdictions,  however,  it 
appears  that  a  mere  oral  disclaimer  of  the  tenancy 
does  not  give  any  right  of  action  to  the  laiidlord,"^- 
and  in  any  such  jurisdisdiction  adopting  that  view, 
the  repudiation  of  the  tenancy  could  not  start  the 
statute  in  favor  of  the  tenant,  until  after  the  expiration 
of  the  term  for  which  the  tenancy  was  created. 

(S.    C.)    225,    40    Am.    Dec.    594;  80.     Wells    v.    Sheerer.    78    Ala. 

Bryce  v.   Cayce,   62   S.   C.   546,  4ft  142;    Rigg  v.  Cook,  9   111.   336,  4C 

S.    E.    948;     Duke    v.    Harper,    6  Am.  Dec.  462;  Farrow  v.  Edmund- 

Yerg.    (Tenn.)    280,    27    Am.    Dec.  son,  4  B.  Mon.   (Ky.)   605,  41  Am. 

462;     Udell  v.  Peak.  70  Tex.   547,  Dec.   250;    Myers   v.    Sill  jacks,    ?8 

7   S.   W.   786;    Stacy  v.   Bostwick,  Md.  319;  McClanahan  v.  McClana- 

48    Vt.    192;     Allen    v.    Paul,    24  han,  258  Mo.  579.  167  S.  W.  991. 

Gratt.    (Va.)    332;    Voss   v.    King,  81     These  decisions  are  cited  2 

33  W.  Va.  236,  10  S.  E.  402.  Tiffany,  Landlord  &  Tenant.  §  192. 

79.     Wells   V.    Sheerer,    78    Ala.  82.     See  Jackson  v.  Kissoll)rack, 

142;    Cotton    v.    White,    131    Ark.  10  Johns.   (N.  Y.)   :536.  6  Am.  Dec. 

273,    199    S.    W.    116;     Morton    v.  341;    De  Lancey  v.  Ganong,   9   N. 

Lawson,    1     B.    Mon.     (Ky.)     45;  Y.    9;    Bedlow    v.    N.    V.    Floating 

Catlin   V.    Decker,    38    Conn.    262:  Dry  Dock  Co.  112  N.  Y.  263.  287, 

Brandon    v.    Bannon,    38    Pa.    63;  2    I..    R.    A.    629,    19    N.    E.    800; 

Cosgrove    v.    Franklin,    35    R.    I.  Rosseel    v.    Jarvis,    15    Wis.    571, 

527,  87  Atl.  544;  Floyd  v.  Mintsey,  82  Am.  Dec.  298;  Gale  v.  Oil  Hun 

7  Rich.  Law  (S.  Car.)   181;   Udell  Petroleum    Co.,    6    W.    Va.     200 > 

V.  Peak,  70  Tex.  547,  7  S.  W.  786;  Doe  d.  Graves  v.  Wells.   10  Adol. 

Rensens    v.    Lawson,    91    Va.    226,  &    El.    427;     Doe    d.     Daniels    t. 

21    S.   E.   347;    Swann   v.   Thayer,  Weese,   5   Up.   Can.   Q.    B.   5S9. 
36  W.  Va.  46.  14  S.   K.  423. 


2000  Eeal  Property.  [§  513 

Occasionally  it  has  been  asserted  that,  in  order 
that  the  tenant  may  start  the  statute  running  in  his 
favor,  he  must  not  only  repudiate  the  teancy,  but  must 
also  relinquish  the  possession  acquired  under  the  lease 
and  then  reenter.^''  This  view  appears  to  be  based 
on  the  theory  that  by  reason  of  the  doctrine  that  a 
tenant  is  estopped  or  precluded  to  deny  his  landlord's 
title,^^  he  cannot  make  his  possession  adverse  by  such 
a  denial,  but  that  such  doctrine  ceases  to  apply  after 
the  tenant  has  relinquished  possession.  The  doctrine  of 
the  estoppel  of  the  tenant  to  deny  the  landlord's  title 
has,  it  is  submitted,  no  bearing  whatsoever  upon  the 
question.  That  doctrine  precludes  the  tenant  from 
denying,  in  certain  classes  of  action,  that  the  lessor 
had  a  valid  title  at  the  time  of  the  lease,  but  it  does 
not,  and  in  fact  it  cannot,  preclude  him  from  making 
such  a  denial  out  of  court,  and  there  is  nothing  in  the 
doctrine  to  prevent  him  from  subsequently  showing, 
in  the  course  of  a  legal  proceeding,  that  he  did  make 
such  denial,  and  that  as  a  result  of  such  denial  the 
title  of  the  lessor  was  extinguished  by  the  statute  of 
limitations.  Furthermore,  if  this  doctrine  of  estoppel 
did  apply  for  this  purpose,  it  is  most  questionable 
whether  it  should  cease  to  apply  merely  because  the 
tenant  relinquishes  possession,^^  unless  such  relinquish- 
ment is  accepted  by  the  landlord,  so  as  to  etfect  a  sur- 
render by  operation  of  law,^*^  in  which  case  the  former 
tenant's  subsequent  entry  might  well  be  adverse. 

There  are  occasional  decisions  to  the  effect  that 
if  one  holding  under  a  lease  assumes  to  transfer  a  fee 
simple  estate  in  the  property,  and  the  transferee  takes 
possession  in  ignorance  of  the  fact  that  his  transferor 

83.     Millett  V.  Lagomarsino,  107  Hightower,   97   Ga.    592,   25    S.   E. 

Cal.  102,  40  Pac.  25;   Alderson  v.  371.      See    2    Columbia  Law   Rev. 

Marshall,    7    Mont.    288,    16    Pac.  52,  9   Id.  451. 

576;    Whiting  v.  Edmunds,  94  N.  84.     Ante,   §  57. 

Y.   309;    Dasher  v.   Ellis,   102   Ga.  85.     Ante,  §  57  (d). 

830,    30    S.    E.    544;    Flannery    v.  86.     Ante,    §    431. 


*§>  513]  Adveese  Possession.  2001 

had  merely  a  leasehold  interest  to  transfer,  the  pos- 
session of  the  transferee  is  adverse  to  the  original 
landlord,  although  the  latter  has  no  notice  to  that 
effect.^"  Such  decisions  do  not  appear  to  accord  with 
the  well  settled  rule  that  the  statute  does  not  com- 
mence to  run  by  reason  of  the  repudiation  of  the 
tenancy  unless  and  until  notice  of  such  repudiation  is 
brought  home  to  the  landlord.  The  landlord  has  a 
right  to  assume,  until  notified  of  the  contrary,  that  one 
in  possession  under  a  transfer  from  the  lessee  is  in 
possession  as  tenant  merely,  and  while  the  fact  that 
the  transferee  is  ignorant  of  the  lease  shows  that 
there  is  no  recognition  by  him  of  the  landlord's  title, 
this  is  no  reason  for  applying  as  against  the  landlord 
a  doctrine  which  has  properly  no  application  in  the 
absence  of  laches  on  the  part  of  the  latter.^**  And  so, 
it  one  holding  as  tenant  at  will  dies,  and  his  widow 
succeeds  him  in  the  possession,  her  possession  is  pre- 
sumed, in  the  absence  of  any  repudiation  by  her  of 
the  tenancy,  to  be  subordinate  to  the  title  of  the  true 
owner.^^^ 

If  the  tenant  under  a  lease  holds  over  witliout  the 
consent  of  the  reversioner,  that  is,  without  riglit,  he 
is  not,  properly  speaking,  a  tenant  of  the  person  whom 
he  wrongfully  excludes  from  possession,*^''  but  never- 
theless his  possession  is,  prima  facie,  not  regarded  as 
adverse  to  the  latter.^*' 

87.  Macdougall  v.  Reedy,  71  Philips  v.  Rothwell,  4  Bibb.  (Ky.) 
Ga.  750;  Dikeman  v.  Parrish,  tJ  33;  Millett  v.  Lagonia(rsino,  107 
Pa.  225,  47  Am.  Dec.  455;  Town-  Cal.  102,  38  Pac.  308;  Gee  v. 
send  V.  Boyd,  217  Pa.  386,  12  L.  Hatley,  114  Ark.  376,  170  S.  W. 
R.  A.  N.  S.  1148,  66  Atl.  1099;  72;  editorial  notes  9  Columbia 
Illinois  Steel  Co.  v.  Budzisz,  139  Law  Rev.  451.  22  Harvard  Law 
Wis.  281,  119  N.  W.  935,  121  N.  Rev.  604;  7  Mich  Law  Rev.  592. 
W.  362.  88a.     Frazer  v.  Naylor,  1    Mete 

88.  See  Luce  v.  Carley,  24  (Ky.)  593;  Neilson  v.  (;^i^;IU)Il, 
Wend.    (N.  Y.)    451,   35  Am.   Dec.  85  Wis.  550,  55  N.  W.  890. 

637;    Bedlow  v.  New  York   Float-  89.     Ante,  §  68. 

ing  Dry  Dock  Co.,  112  N.  Y.  263,  90.     Gwynn  v.  Jones'  Lessee,  2 

287,  2  L.  R.  A.  629,  19  N.  E.  800;       Gill.    &    J.     (Md.)    173;    Lyebrook 


2002 


Real  Peopeety. 


[§  513 


(b)  Trustee  and  cestui  que  trust,  Tlie  posses- 
sion of  the  trustee  under  an  express  trust  is  ordinarily 
not  adverse  to  the  cestui  que  trust,^'^  But  although  the 
possession  of  the  trustee  is  originally  not  adverse,  it 
becomes  so  in  case  he  repudiates  the  trust  by  un- 
equivocal words  or  acts,  and  such  repudiation  is 
brought  to  the  notice  of  the  cestui  que  trust.^^ 

In  the  case  of  a  constructive  trust,  which  is  rec- 
ognized by  a  court  of  equity  for  the  purpose  of  relief 
against  fraud,'''^  the  possession  of  the  holder  of  the 
legal   title    is    ordinarily    adverse    to    the    person    who 


V.  Hall,  73  Miss.  509,  19  So.  348; 
Carson  v.  Broady,  56  Neb.  648, 
71  Am.  St.  Rep.  691,  77  N.  W.  80; 
Jackson  v.  Cams,  20  Johns.  (N. 
Y.)  301;  Taylor  v.  Kelly,  3  Jones 
Eq.  (56  N.  Car.)  240;  Leport  v. 
Todd,  32  N.  J.  L.  124;  Nessley  v. 
Ladd,  29  Ore.  354,  45  Pac.  904; 
Whaley  v.  Whaley,  1  Speer  Law 
(S.  C.)  225.  40  Am.  Dec.  594; 
Brandon  v.  Bannon,  38  Pa.  63; 
Uiike  V.  Harper,  6  Yerg.  (Tenn.) 
280,  27  Am.  Dec.  462;  Flannagan 
V.  Pearson,  61  Tex.  302;  Fahey  v. 
Kaies,— Tex.  Civ.—,  181  S.  W. 
782;  Sherman  v.  Champlain 
Transportation  Co.,  31  Vt.  162; 
Emerick  v.  Tavener,  9  Gratt. 
(Va.)  220,  58  Am.  Dec.  217; 
Swann  v.  Young,  36  W.  Va.  57, 
14    S.   E.   426. 

In  New  York  the  statute  pro- 
vides that  the  holding  of  a  tenant 
shall  not  be  adverse  till  twenty 
years  after  the  expiration  of  the 
term.  See  Whiting  v.  Edmunds, 
94   N.  Y.   309. 

91.  Seymour  v.  Freer,  8  Wall. 
(U.  S.)  202.  19  L.  Ed.  306;  Cruse 
v.  Kidd,  195  Ala.  22,  70  So.  166; 
Watson  V.  Sutro,  86  Cal.  500,  24 
Pac.    172,    25    Pac.    64;    Meacham 


V.  Bunting,  156  111.  586,  47  Am. 
St.  Rep.  239,  28  L.  R.  A.  618; 
Dunn  V.  Wheeler,  86  Me.  238,  29 
Atl.  985;  Hatt  v.  Green,  180  Mich. 
383,  147  N.  W.  593;  Kane  v. 
Bloodgood,  7  Johns.  Ch.  125;  Mil- 
ler V.  Bingham,  36  N.  C.  423,  36 
Am.  Dec.  58;  Williams  v.  First 
Presbyterian  Soc.  in  Cincinnati, 
1  Ohio  St.  478;  Smith  v.  McElyea, 
68  Tex.  70,  3  S.  W.  258;  Reuford 
V.  Clarke,  100  Va.  115,  40  S.  E. 
630. 

92.  Willison  v.  Watkins,  3  Pet. 
42,  52;  Schlessinger  v.  Mallard, 
70  Cal.  326,  11  Pac.  728;  Terry 
V.  Davenport,  185  Ind.  561,  112  N. 
E.  998;  McGuire  v.  Nugent,  103 
Mo.  161,  15  S.  W.  551;  Stanton 
V.  Helm,  87  Miss.  287,  ?9  So. 
457;  Lamberton  v.  Youmans,  84 
Minn.  109.  86  N.  W.  894;  Con- 
gregational Soc.  etc.  v.  Newing- 
ton,  53  N.  H.  595;  Boydstun  v. 
Jacobs.  38  Nev.  175,  147  Pac.  447; 
Williams  v.  Cincinnati  First 
Presby.  Church,  1  Ohio  St.  478; 
Long  v.  Cason,  4  Rich.  Eq.  60; 
Fennell  v.  League,  107  Tenn.  239, 
63  S.  W.  1121. 

93.  Ante,  §  108(a). 


§  513]  Adverse  Possession.  20U3 

is  asserting  the  fraud.''*  That  is,  the  statutory  period 
within  which  one  must  seek  to  be  relieved  against 
another's  fraud  is  not  extended  by  reason  of  the  fact 
that  such  fraud  has  resulted  in  placing  the  legal  title 
to  land  in  the  wrongdoer,  and  that  the  court,  in  re- 
lieving against  the  fraud,  does  so  by  declaring  him 
to  hold  in  trust  for  the  person  defrauded.  But  if  the 
fraud  arises  from  the  repudiation  of  a  promise  or 
undertaking  to  hold  the  land  for  the  benefit  of  another, 
the  statute  does  not  begin  to  run  until  the  repudiation 
actually  occurs,  and  knowledge  thereof  is  brought 
home  to  the  person  entitled  to  assert  the  fraud. '^^^ 
And  the  view,  adopted  in  many  states,  that  the  statute 
of  limitations  does  not  run  against  a  right  of  action 
based  on  fraud,  until  the  fraud  is  discovered,  would 
frequently  operate  to  extend  the  time  for  the  assertion 
of  a  constructive  trust.^^ 

To  what  extent,  in  the  case  of  a  resulting  trust, 
that  is,  a  trust  implied  in  accordance  with  presumed 
intention,'''^  the  possession  of  the  trustee  is  to  be  re- 
garded as  adverse  or  not  adverse  to  the  person  bene- 
ficially entitled,  the  cases  are  not  entirely  clear.  It  has 
been  decided  in  a  number  of  cases  that,  when  the 
trust  resulted  from  the  payment  of  a  consideration  by 
one  person  for  property  conveyed  to  another,  the 
possession  of  the  latter  was  not  adverse  to  the  person 
making  the  payment  mitil  there  was  an  exj)licit  re- 
pudiation of  the  trust,  reference  being  made,  however, 
in  some  of  these  cases,  to  the  fact  that  the  circum- 
stances showed  an   acknowledgment   by   the   former   of 

94.     Lewis  V.  Hawkins,  23  Wall.  95.     Odell  v.  Moss,  130  Cal.  352, 

119;    Hunter    v.    Dennis,    112    HI.  62    Pac.    555;    Carr   v.    Craig,    138 

568,  Terry  v.  Davenport,  185  Ind.  Iowa,  526,  116  N.  W.  720;    Newia 

561,    112    N.    E.    998;    Kennedy   v.  v.    Topfer,    121    Iowa.    433.    96    N. 

Kennedy,    25   Kan.    151;    Edwards  W.  905. 

V.    University,    21    N.    C.    325.    30  96.     Markley    v.    Canulon    Safe 

Am.  Dec.  170;   Church  v.  Winton,  Deposit  &  Trust  Co.,  74  N.  .T.  Eg. 

196  Pa.  St.  107,  46  Atl.  363.  279.  69  Atl.  1100. 

97.     Ante,  §  107. 


2004  Real  Property.  [§  513 

the  existence  of  a  trust.^^  When  the  title  is  taken  in 
the  other's  name  with  a  fraudulent  intention  on  the 
part  of  such  other,  the  trust  is  to  be  regarded  as  a 
constructive  rather  than  a  resulting  trust,  and  the 
statute  would  run  at  least  from  the  time  of  the  dis- 
covery of  the  fraud.''^ 

In  case  the  trustee  under  an  express  trust  trans- 
fers the  legal  title  to  a  third  person,  who  takes  with 
notice  of  the  trust,  or  who  pays  no  consideration,  the 
cestui  que  trust  may  assert  the  trust  as  against  such 
transferee.^  The  possession  of  such  transferee  for 
the  statutory  period  has  been  regarded  as  sufficient 
to  bar  the  rights  of  the  cestui  que  trust,  in  some  cases 
on  the  ground  that  his  possession  is  adverse  to  the 
original  trustee,-  applying  the  rule  that  the  cestui  que 
trust  is  barred  when  the  trustee  is  barred,^  while  in  other 
cases  the  cestui  cjue  trust  has  been  regarded  as  barred  on 
the  theory  that  the  possession  of  the  transferee  of  the 
legal  title  is  that  of  a  constructive  trustee,  and  is  con- 
sequently adverse  to  the  person  equitably  entitled.^     In 

98.     Long    V.     King,     117     Ala.  78     Neb.     584,     111     N.    W.    368; 

423,   23    So.   534;    Haney  v.   Legg,  Crowley  v.  Crowley,  72  N.  H.  241, 

129  Ala.  619,  87  Am.  St.  Rep.  81,  56  Atl.   190;    Fawcett  v.  Fawcett, 

30    So.    34;     Plass    v.    Plass,    122  85    Wis.    332,    39    Am.    St.    Rep. 

Cal.  3,  15;   Norton  v.  Bassett,  154  844,  55  N.  W.  405. 

Cal.    411,    129    Am.    St.    Rep.    162,  99.     Kennedy    v.    Kennedy,    25 

87   Pac.   894;    Corr's   Appeal  from  Kan.      151;       Cox      v.      Menzing, 

Com'rs,  62  Conn.  403,  26  Atl.  478;'  —(Miss.)— 30     So.     41;     Reed    v. 

Warren  v.    Adams,    19    Colo.    515,  Painter,    145    Mo.    341,    46    S.    W. 

36  Pac.  604;   Reynolds  v.  Sumner,  1089. 

126  111.  58,  1  L.  R.  A.  327,  9  Am.  1.     Ante,    §    114. 

St.    Rep.    523;    Zunkel   v.    Colson,  2.     Merriam     v.     Hassam,      14 

109  Iowa,  695,  81  N.  W.  175;  In  re  Allen    (Mass.)    516,    92   Am.    Dec. 

Mahin's    Estate,    161    Iowa,    459,  795;     Smilie    v.    Piffle,    2    Pa.    St. 

143   N.  W.  420;    Smith  v.   Smith,  52,  44  Am.  Dec.  156;    McCrary  v. 

132   Iowa,   700,   119   Am.    St.   Rep.  Clements,    95    Ga.    778,    22    S.    E. 

581,    109    N.    W.    194;    Lufkin    v.  675. 

Jakeman,    188    Mass.    528,    74    N.  3.     Ante.    §    506,   note  9. 

E.    933;    Condit    v.    Maxwell,    142  4.     Robinson      v.      Pierce,      118 

Mo.   266,   44   S.   W.   467,    (but  see  Ala.  273,  45  L.  R.  A.   66,  72  Am. 

Reed  v.   Painter,   145  Mo.  341,   46  St.   Rep.    160,   24    So.   984;    Smith 

S.  W.  1089);    Hanson  v.  Hanson,  v.   Dallas  Compress  Co.,   195   Ala. 


*§  513]  Adveesb  Possession.  2005 

at  least  one  case  the  conclusion  that  the  beneficiary  is 
barred  is  based  upon  the  theory  that  the  transfer  of 
the  legal  title  by  the  original  trustee  involves  a  re- 
pudiation of  the  trust  by  him,  which  starts  the  run- 
ning of  the  statute  in  favor  of  him  and  of  any  person 
claiming  under  him.^  It  has  occasionally  been  decided 
that  the  possession  of  the  transferee  is  adverse  as 
against  the  beneficiary  of  the  trust  even  though  the 
latter  is  not  siii  juris^'  and  that  it  is  adverse  even  as 
against  one  equitably  entitled  in  remainder  only/  de- 
cisions which  are  evidently  based  on  the  theory,  above 
referred  to,  that  the  beneficiary  is  barred  ))y  reason  of 
the  bar  of  the  original  trustee.  To  regard,  however, 
an  innocent  beneficiary  as  barred  by  his  trustee's 
failure  to  take  legal  action  to  set  aside  a  wrongful 
transaction  in  which  the  latter  knowingly  participated 
does  not  seem  entirely  in  accord  with  equitable  princi- 
ples. And  the  rule  that  the  cestui  is  barred  of  relief 
as  against  the  transferee  of  the  trustee  merely  be- 
cause the  statute  has  run  as  against  the  trustee  him- 
self has  been  occasionally  asserted  to  be  inapplicable 
in  favor  of  one  who  thus  colluded  with  the  trustee  in 
a  breach  of  trust. ^  The  bar  of  the  cestui  que  trust  may, 

534,     70     So.     662;      Nougues     v.  512;     Williams    v.    First    Presby- 

Newlands,    118    Cal.    102,    50    Pac.  terian  Soo.  1  Ohio  St.  478. 
386;     StillweU    v.    Leavy,    84    Ky.  6.     McCrary     v.     Clements,     95 

379,     1      S.     W.     590      (semble);  Ga.    778,    22    S.    E.    675;     Wilson 

Cummings     v.      Stovall,      6      Lea  v.    Louisville   Trust   Co.,    102    Ky. 

(Tenn.)    679;    Bedford   v.   Clarke,  522,     44     S.    W.     121;     Ewing     v. 

100    Va.    115,    40    S.    E.    630.     See  Shannahan,    113    Mo.    188,    20    S. 

Newman    v.    Newman,    60   W.   Va.  W.  1065. 

371,    7    L.    R.    A.    N.    S.    370.      In  7.     Robinson     v.     Pierce,     118 

Norton   v.    Bassett,    154    Cal.    411,  Ala.   273   45   L.  R.  A.   66.   72   Am. 

129    Am.    St.    Rep.    162,    97    Pac.  St.   Rep.   160.  24   So.  984. 
894,    it    was    decided    that    if    the  8.     Chase  v.  Cartright,  53  Ark. 

legal    title    passes    by    descent    on  358,    22    Am.    St.    Rep.    207,    14    S. 

the     death     of    the     trustee,     the  W.   90;    Parker   v.    Hall,    2    Head, 

heirs   taking   possession   are   con-  (Tenn.)     641;     Elliott    v.    Landls 

structive      trustees      merely,      in  Mach.     Co.,     236      Mo.     546,     139 

favor   of  whom   the   statute   runs.  S.    W.    356,   distinguishing   Ewing 

5.     Peters    v.    Jones,    35    Iowa,  v.    Shannahan,    113    Mo.    188,    20 


2QP6  Beal  Property.  [§  513 

it  is  submitted,  be  most  satisfactorily  based  upon  the 
theory  that  the  transfer  by  the  the  original  trustee  in- 
volves a  repudiation  of  the  trust,  which  sets  the 
statute  in  motion  as  against  him  and  those  claiming 
under  him,  so  soon,  and  not  until,  it  becomes  known  to 
the  cestui  que  trust. 

The  possession  of  the  cestui  cpte  trust  under  an 
express  trust  is  prima  facie  not  hostile  to  the  trustee, 
though  it  may  become  so  by  the  assertion  by  him  of  a 
claim  in  his  own  right.^'^  The  possession  of  one  whose 
beneficial  interest  exists  by  reason  of  a  resulting  trust 
implied  from  his  payment  of  the  purchase  price  has 
been  regarded  as  adverse  to  the  person  to  whom  he 
had  the  legal  title  conveyed.^ ^ 

(c)    Licensor  and  licensee.     One  who  goes  on 

land  as  a  licensee  merely  has  no  possession  of  the 
land,^2  and  consequently  the  statute  does  not  begin  to 
run  in  his  favor  unless  and  until  he  in  effect  takes 
possession  by  denying  that  he  is  in  the  position  of  a 
licensee. ^^ 

(d)     Principal  and  agent.     Whether  one  who 


is   upon   another's   property  in   the   capacity   of   agent 
has,    strictly    speaking,    possession    of    the    property 

S.    W.    1065    on    the    ground    that  Stevenson,    118    Iowa,    106,    91   N. 

in  the   earlier  case   the   purchase  W.    925;    Matthews    v.    Ward,    10 

was  not  directly  from  the  trustee.  G.    &   J.    (Md.)    443;    Whiting   v. 

See    also    Deans    v.    Gay,    132    N.  Whiting,    4    Gray     (Mass.)     236; 

Car.  227,  43   S.  E.  643.  Newmarket    v.    Smart,    45    N.    H. 

9.  As     to      the     necessity      of  103;    Marr's    Heirs    v.    Gilliam,    1 
knowledge    on    the    part    of    the  Cold.    (Tenn.)    488. 
beneficiary,  see  Marshall's  Estate,  11.     Ripley  v.  Bates,   110  Mass. 
138  Pa.  St.  285,  22  Atl.  24;  Jones  161. 

V.     Godwin,     10     Rich.     Eq.     226;  12.     Ante.    §    349(a). 

Neal    V.    Bleckley,    51    S.    C.    506,  13.     Sanitary    Dist.    of    Chicago 

29    S.    E.    249;    editorial    note    11  v.    Allen,    178    lU.    330,    53    N.    E. 

Columbia  Law   Rev.   686.  109;      Blaisdell     v.      Portsmouth, 

10.  Burrows  v.  Holt,  20  Conn.  G.  F.  &  C.  R.  Co.,  51  N.  H.  483; 
464;  Winn  v.  StriclVaid,  34  Fla.  Luce  v.  Carley,  24  Wend.  (N. 
610,    16    So.    606;    McClenahan    v.  Y.)    451,  35  Am.  Dec.  637;    Curtis 


§  513] 


Advebse  Possession. 


2007 


appears  to  be  open  to  doubt.'""  But  assuming  that  ho 
oan  be  regarded  as  having  possession,  his  possession  is 
prima  facie  not  adverse  to  the  owner,  liis  principal.'* 
Hie  may,  liowever,  acquire  an  adverse  possession  as 
against  tlie  latter  by  a  repudiation  of  the  relation  of 
agency,  or  assertion  of  a  claim  to  the  property  in  his 
own  right,  so  soon  as  the  principal  is  affected  with 
knowledge  thereof.'^ 

(e)     Grantor  land   grantee.     If   one   who   has 


made  a  conveyance  of  land  retains  possession  of  the 
land,  his  possession  is  regarded  as  prima  facie  in  sub- 
ordination to  the  title  of  his  grantee,  and  as  conse- 
quently not  adverse,  unless  and  until  he  in  some  wa}' 
indicates  to  the  latter  that  he  holds  in  his  own  behalf.'*' 


V.  La  Graude  Hydraulic  Water 
Co.,  20  Ore.  34;  Kittaning  Acad- 
emy V.  Brown,  41  Pa.  St.  269; 
Raleigh  v.  Wells,  29  Utah,  217, 
110  Am.  St.  Rep.  689,  81  Pac. 
908. 

In  Cameron  v.  Chicago,  M.  & 
St.  P.  Ry.  Co.,  60  Minn.  100,  61 
N.  W.  814,  it  was  held  that  the 
fact  that  the  licensee  undertook 
to  transfer  the  land  to  another, 
who  took  possession,  did  not 
start  the  running  of  the  statute 
in  favor  of  such  other,  since  it 
might  be  assumed  that  the  own- 
er, in  not  objecting  to  the  lat- 
ter's  presence  on  the  land,  in 
effect  regarded  him  as  a  licensee. 
The  decision  seems  open  to  ques- 
tion, since  it  does  not  appear 
that  the  transferee  in  possession 
regarded  himself  as  a  licensee. 
But  see  Bond  v.  O'Gara,  177 
Mass.  139,  83  Am.  St.  Rep.  265; 
58  N.  E.  275,  criticized  14 
Harv.  Law  Rev.  374. 

13a.     See     Pollock     &     Wright, 
Possession    17;     Lightwood,    Pos- 


session    of     Land,     22;     Holmes, 
The  Common  Law,  227. 

14.  Baucum  v.  George,  65  Ala. 
259;  Hoskins  v.  Byler,  53  Ark. 
532,  14  S.  W.  864;  Peabody  v. 
Tarbell,  2  Cush.  (Mass.)  226; 
Combs  V.  Goldsworthy,  109  Mo. 
151,  18  S.  W.  1130;  Leigh  v. 
Howard,  87  N.  J.  L.  113,  ?3  Atl. 
680;  Martin  v.  Jackson,  27  Pa. 
St.  504,  67  Am.  Dec.  489;  Pea- 
body  v.  Leach,   18  Wis.  657. 

15.  Carney  v.  Hennessey,  77 
Conn.  577,  60  Atl.  129;  Whiting's 
Heirs  v.  Taylor's  Heirs,  8  Dana 
(Ky.)  403;  Martin  v.  Jackson, 
27  Pa.  St.  504,  67  Am.  Dec.  489; 
Williams  v.  Pott,  L.  R.  12  Eq. 
149.  As  to  adverse  possession 
by  an  agent,  holding  by  one 
to  whom  he  has  leased  the  land 
for  his  principal,  see  note  in 
14  Columbia  Law  Rev.  at  p.  266. 

16.  Daniels  v.  Williams,  177 
Ala.  140,  58  So.  419;  Stuttgart 
V.  John,  85  Ark.  520,  109  S.  W. 
541;  Gernon  v.  Sisson, —  (Cal.)  — 
l.'.l    Pac.    85;     Jay    v.    Whelchel. 


2008 


Real  Property. 


[§  513 


The  cases  do  not  clearly  explain  why  the  possession  of 
the  grantor  is  thus  presumed  not  to  be  in  his  own 
behalf.^'^  Obviously,  if  the  grantor  retains  possession 
by  reason  of  permission  to  that  effect  from  the  grantee, 
his  possession  is  not  adverse,  it  being  in  effect  that  of  a 
tenant,  ordinarily  a  tenant  at  will,  of  the  latter,^^  but 
the  desirability  of  regarding  the  grantor  as  a  tenant  of 
the  grantee,  or  as  otherwise  holding  in  behalf  of  the 


78  Ga.  786;  Trask  v.  Success 
Mining  Co.,  28  Idaho,  483,  155 
Pac.  288;  Rowe  v.  Beckett,  30 
Ind.  154,  95  Am.  Dec.  676;  Iowa 
Cent.  R.  Co.  v.  Homan,  151  Iowa, 
404,  131  N.  W.  878;  Sellers  v. 
Crossan,  52  Kan.  570,  35  Pac. 
205;  Nugent  v.  Peterman,  137 
Mich.  646,  100  N.  W.  895;  Col- 
lins V.  Colleran,  86  Minn,  li'9, 
90  N.  W.  364;  Robmson  v.  Rey- 
nolds,—(Mo.)— ,  176  S.  W.  3; 
Cohn  V.  Plass,  85  N.  J.  Eq.  153, 
95  Atl.  1011;  Jackson  v.  Burton, 
1  Wend.  (N.  Y.)  341;  Flesher  v. 
Callahan,  32  Okla.  283,  122  Pac. 
489;  Gardner  v.  Wright,  49  Ore. 
609,  91  Pac.  286;  Pierce  v.  Bar- 
ney, 209  Pa.  132,  58  Atl.  152; 
Lowe  V.  Turner,  78  S.  C.  513,  59 
S.  E.  529;  Virginia  Midland  R. 
Co.  V.  Barbour,  97  Va.  118,  33  S. 
E.  554;  Spaulding  v.  Collins,  51 
Wash.  488,  99  Pac.  306;  Schwall- 
back  V.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  69  Wis.  292,  2  Am.  St.  Rep. 
740,   34   N.  W.  128. 

17.  It  is  occasionally  said  that 
the  grantor's  possession  is  not 
adverse,  because  he  is  to  be  re- 
garded as  tenant  at  sufferance  of 
the  grantee.  See  e.  g.  Daniels 
V.  Williams,  177  Ala.  140,  58  So. 
419;  Building  &  Loan  Ass'n  v. 
Warren,    101    Ark.     163,    141     S. 


W.  765;  McNeil  v.  Jordan,  28 
Kan.  7;  Bloomer  v.  Henderson, 
8  Mich.  395.  A  tenant  at  suf- 
ferance is  a  wrongful  possessor, 
and  he  is  not  properly  a.  tenant 
of  the  person  whom  he  deprives 
of  possession.  And  consequently 
that  one  is  tenant  at  sufferance 
does  not  appear  to  be  conclusive 
that  his  possession  is  not  ad- 
verse. In  other  words,  the  fact, 
if  it  be  a  fact,  that  the  grantor 
retaining  possession  is  tenant  at 
sufferance  (See  1  Tiffany,  Land- 
lord &  Ten.,  §  44)  does  not  in 
itself  show  that  his  possession 
is  not  adverse.  For  instance, 
if  a  tenant  per  autre  vie  retains 
(possession  after  the  death  of 
the  cestiu  que  vie,  his  possession 
is  usually  regarded  as  adverse 
to  the  remainderman  [see  post 
§  513(g)],  although  he  is  a 
tenant    at    sufferance. 

18.  See  Prichard  v.  Tabor, 
104  Ga.  64,  30  S.  E.  415;  Butler 
V.  Nelson,  72  Iowa,  732,  32  N. 
W.  399;  Hunt  v.  Comstock,  15 
Wend.  (N.  Y.)  665;  Preston  v. 
Hawley,  101  N.  Y.  586,  5  N.  E. 
770,  Id.,  139  N.  Y.  296,  34  N.  E. 
90G;  Cadwallader  v.  Lovece,  10 
Tex.  Civ.  App.  1,  29  S.  W.  666, 
917;    Hodges  v.  Gates.  9  Vt.   178. 


§  513] 


Adverse  Possession. 


2009 


latter,   in   the  absence   of  any   evidence   to   that  effect, 
appears  to  be  open  to  question.^^ 

One  who  goes  into  possession  of  land  under  a 
transfer  of  the  land  from  the  owner,  whether  by  way 
of  gift  or  otherwise,  which  is  invalid  because  oral  mere- 
ly, may  usually  assert  the  bar  of  the  statute  against  the 
owner  if  his  possession  continues  for  the  statutory 
period,  since  his  possession  is  presumed  to  be  adverse 
to  any  right  in  the  o^vner.^o  And  generally  a  grantee's 
possession  is  regarded  as  adverse  to  the  rights  of  the 
grantor,  whatever  be  the  character  of  the  defects  in 
the  grant.2^ 


19.  See,  in  this  connection, 
Knight  V.  Knight,  178  111.  553, 
53  N.  E.  306;  Waltemeyer  v. 
Baughman,  63  Md.  200;  Smith 
V.  Montes,  11  Tex.  24;  Brinkman 
V.   Jones,   44   Wis.    498,    524. 

In  Arkansas  it  is  said  that 
when  the  grantor's  possession 
continues  unexplained  for  an  un- 
reasonable length  of  time,  the 
presumption  that  it  is  in  sub- 
ordination to  the  grantee's  title 
is  gradually  overcome.  Tegarden 
V.  Hurst,  123  Ark.  354,  185  S. 
W.  463.  It  does  not  appear 
whether,  if  the  presumption  is 
thus  overcome,  the  limitation 
period  is  to  be  regarded  as  be- 
ginning to  run  from  the  date 
of  the  grant  or  when  the  pre- 
sumption  is   overcome. 

20.  Gillespie  v.  Gillespie,  149 
Ala.  184,  43  So.  12;  Trotter  v. 
Neal,  50  Ark.  340,  7  S.  W.  384; 
New  Haven  Trust  Co.  v.  Camp, 
81  Conn.  539.  71  Atl.  788; 
Studstill  v.  Wilcox,  94  Ga.  690, 
20  S.  E.  120;  Stewart  v.  Duffy, 
116  111.  47.  6  N.  E.  424;  Albright 
V.  Albright,  153  Iowa,  .'597,  133  N. 
W.    737;    Tippenhauer   v.    Tlippen- 


hauer,— (Ky.)— ,  166  S.  W.  225; 
Sumner  v.  Stevens,  6  Mete. 
(Mass.)  337;  Schafer  v.  Hauser, 
111  Mich.  622,  35  L.  R.  A.  835, 
66  Am.  St.  Rep.  403,  70  N.  W. 
136;  Sinclair  v.  Matter,  125 
Minn.  484,  147  N.  W.  655;  Ran- 
nels  V.  Ranuels,  52  Mo.  109; 
Davidge  v.  Talbot,  98  Neb.  816, 
154  N.  W.  543;  Parker  v.  Kelsey, 
82  Ore.  334,  161  Pac.  694;  Nulton 
V.  Nulton,  247  Pa.  572,  93  Atl. 
630;  Bartlett  v.  Secor,  56  Wis. 
520,   14   N.   W.   714. 

It  has  been  said  that  unless 
the  donee's  entry  into  possession 
is  under  the  honest  belief  that 
the  land  was  given  him,  he  Is 
presumed  to  be  holding  under  a 
license,  and  the  possession  not  to 
be  adverse.  Johns  v.  Johns,  244 
Pa.  48,  90  At.  535;  O'Boyle  v. 
Kelley,  249  Pa.  13,  94  Atl.  448. 
The  idea  apparently  is  that  if 
the  person  so  entering  knows 
that  the  land  was  not  legally 
given  him,  he  is  presumed  to 
regard  his  possession  as  per- 
missive merely  until  a  valid  gift 
is  actually  made. 
21.     Robinson   v.  Thornton,  102 


2010 


Eeal  Peopeety. 


[§  5i: 


(f )     Vendor   and   vendee.      The   possession   of 

the  vendee  of  land  under  an  executory  contract  of 
sale  is  presumed  to  be  in  subordination  to  the  rights  of 
his  vendor  so  long  as  the  purchase  price  has  not  been 
paid  or  the  contract  is  otherwise  unperformed  on  his 
part,-^  while,  by  the  weight  of  authority,  so  soon  as  he 
has  completely  performed  his  part  of  the  contract, 
his  possession  becomes  adverse  to  the  vendor,^^  as  it 
does,  even  before  performance  by  him,  if  he  explicitly 
repudiates  holding  under  the  vendor.-^ 


Cal.  675,  34  Pac.  120;  Carmody 
V.  Chicago  &  A.  R.  Co.,  Ill  111. 
69;  Big  Sandy  Co.  v.  Ramey,  162 
Ky.  236,  172  S.  W.  508;  Melvin 
V.  Proprietors  of  Locks  &  Canals 
on  Merrimack  River,  5  Mete. 
(Mass.)  15,  38  Am.  Dec.  384; 
Case  V.  Green,  53  Mich.  615,  19 
N.  W.  554;  Mattison  v.  Ausmuss, 
60  Mo.  551;  Nowlin  v.  Adams, 
25  Gratt  (Va.)  137;  Parkersburg 
Nat.  Bank  v.  Neal,  28  W.  Va. 
744. 

22.  Lewis  v.  Hawkins,  23  Wall 
119;  Sample  v.  Reeder,  107  Ala. 
227,  18  So.  214;  Perry  v.  Arka- 
delphia  Lumber  Co.,  83  Ark.  374, 
103  S.  W.  724;  Woodward  v. 
Hennegan,  128  Cal.  293,  60  Pac. 
769;  Spratt  v.  Livingston,  32 
Fla.  507,  22  L.  R.  A.  453;  Moore 
V.  Mobley,  123  Ga.  424,  51  S.  E. 
351;  Peabody  v.  Hewett,  52  Me. 
33,  83  Am.  Dec.  486;  Brown  v. 
King,  5  Mete.  (Mass.)  173;  Burke 
V.  Douglass,  115  Mich.  197,  73  N. 
W.  133;  Moring  v.  Abies,  62  Miss. 
263,  52  Am.  Rep.  186;  In  re  De- 
partment of  Public  Parks,  73  N. 
Y.  560;  Worth  v.  Wrenn,  144  N. 
C.  656,  57  S.  E.  388;  West  v. 
Edwards,  41  Ore.  609,  69  Pac. 
992;  Moo-e  v.  Kelly,  57  Okla. 
348,    157    Pac.    81;     McCulloch    v. 


Nicholsou,^Tex.  Civ.  App — ,  162 
S.  W.  432;  William  James  Sons 
Co.  V.  Hutchinson,  79  W.  Va.  389, 
90  S.  E.  1047.  The  possession 
of  the  vendee  has  been  regarded 
as  becoming  adverse  in  case  the 
vendor  repudiates  the  contract,  as 
by  conveying  to  another  person. 
Pearson    v.    Boyd,    62    Tex.    541. 

23.  Alabama  State  Land  Co. 
V.  Matthews,  168  Ala.  200,  53  So. 
174;  Dickson  v.  Sentell,  83  Ark. 
.385,  104  S.  W.  148;  New  Domain 
Oil  &  Gas  Co.  v.  Gaffney  Oil  Co., 
134  Ky.  792,  121  S.  W.  699; 
Grigsby  v.  Smith,  174  Ky.  819, 
192  S.  W.  856;  Brown  v.  King,  5 
Mete.  (Mass.)  173;  Moring  v. 
Abies,  62  Miss.  263,  52  Am.  Rep. 
186;  Ogle  v.  Hignet,  161  Mo.  47, 
61  S.  W.  596;  Lanham  v.  Bowlby, 
86  Neb.  148,  125  N.  W.  149;  An- 
derson v.  McCormick,  18  Ore. 
301,  22  Pac.  1062;  Watts  v.  Witt, 
39  S.  C.  356,  17  S.  E.  822;  Central 
Pac.  Ry.  Co.  v.  Tarpey,— Utah— , 
168    Pac.    554;    Adams   v.   Fullam, 

43  Vt.    592;    Furlong    v.    Garrett. 

44  Wis.  Ill;  See  Endicott  v. 
Haviland,  220  Mass.  48,  107  N.  E. 
394. 

24.  Zeller  v.  Eckert,  4  How. 
295:  Sample  v.  Reeder,  107  Ala. 
227,    18    So.    214;    Pope    v.    Brass- 


§  513]  Adverse  Possessiox.  2U11 

It  is  not  entirely  clear  why  the  performance  of 
the  vendee's  part  of  the  contract  should  b<^  regarded 
as  ipso  facto  giving  to  his  possession  an  adverse 
character,  but  it  is  perhaps  based  on  the  view  that  the 
vendee  is  then  entitled  to  possession,-*'  and  that  con- 
sequently, while  previously  his  possession  could  be 
explained  only  on  the  theory  tliat  he  was  the  tenant  of  the 
vendor,-'^  such  tenancy  might  be  regarded  as  automatic- 
ally ended  by  reason  of  complete  performance  of  the 
contract  by  him.  There  are  decisions,  however,  that 
even  in  the  case  of  such  complete  performance  by 
the  vendee,  a  repudiation  of  the  vendor's  title  is  nec- 
essary to  start  the  running  of  the  statute.-"  And  in 
support  of  this  view  it  may  be  suggested  that,  what- 
ever change  in  the  relations  of  the  parties  may  be 
made  by  the  vendee's  performance,  in  the  view  of  a 
court  of  equity,  it  does  not  change  their  relations  at 
law. 

Where  the  vendee  under  an  executory  contract  of 
sale  transfers  his  interest  to  another,  who  takes  pos- 
session, the  possession  of  the  latter  is  ordinarily,  like- 
that  of  the  original  vendee,  not  adverse  to  the  vendor,-^ 
provided  at   least   he   has   notice   that  his  vendor,   the 

field,  110  Ky.  128,  61  S.  W.  161;  man  v.  Chapman,  91  Va.  397,  50 
Burke  v.  Douglass,  115  Mich.  197,  Am.  St.  Rep.  846,  21  S.  E.  813; 
73  N.  W.  133;  Lanham  v.  Bowlby  Core  v.  Faupel,  24  W.  Va.  238. 
86  Neb.  148,  125  N.  W.  149;  Cook  In  Briggs  v.  Prosser,  14  Wend. 
V.  Knott,  28  Tex.  85;  Chapman  227,  whether  the  possession  after 
V.  Chapman,  91  Va.  397,  50  Am.  performance  is  adverse,  was  re- 
st.  Rep.   846,   21    S.   E.    813.  garded  as  a  question  to  be  deter- 

25.  See  cases  cited,  19  Am.  &  mined  with  reference  to  the 
Eng.    Encyc.   Law    (2d    Ed.)    704;  facts. 

39  Cyclopedia  Law  &  Proc.   1621.  28.     Lewis      v.      Hawkins.      23 

26.  See  1  Tiffany,  Landl'd  &  Wall.  119;  Hannibal,  etc.,  R.  Co. 
Ten.    §    43a.  v.   Miller,    115   Mo.   158,   21   S.   W. 

27.  Pope  V.  Brassfield,  110  Ky.  915;  Jackson  v.  Bard,  4  Johns. 
128,  61  S.  W.  5;  Roxbury  v.  (N.  Y.)  230,  4  Am.  Dec.  267: 
Hutson,  37  Me.  42  (seni'ble) ;  Gillison  v.  Savannah,  etc..  R.  Co., 
Rodgers  v.  Beckel,  172  Mich.  544,  7  S.  C.  173.  Compare  ilunter 
138    N.    W.    202    isemble);    Chap-  v.    Parsons,   2    Bailey    ( S.   C)    59. 


2012  Real  Property.  [§  513 

original  vendee,  claims  under  an  executory  contract.^'' 
It  lias  been  decided,  however,  that  if  the  original 
vendee  make  a  conveyance  to  another,  who  takes  with- 
out notice  that  his  grantor  is  holding  merely  under  an 
executory  contract  of  sale,  the  possession  of  the 
grantee  is  adverse  to  the  original  vendor.^*^  And  there 
are  occasional  decisions  that  the  mere  fact  that  a 
purchaser  from  the  original  vendee  has  made  full 
payment  to  the  latter  suffices  in  itself  to  make  such 
purchaser's  possession  adverse  to  the  original  vendor.-^^ 
In  any  case,  the  possession  of  one  claiming  under  the 
original  vendee,  like  that  of  the  original  vendee  him- 
self, may  become  adverse  by  reason  of  his  repudiation 
of  the  claim  of  the  vendor.^- 

(g)     Life    tenant    and    remainderman.      The 


statute  of  limitation  does  not  operate  in  favor  of  a 
tenant  for  his  owm  or  another's  life,  so  long  as  the 
life  endures,  as  against  the  remainderman  or  rever- 
sioner.'''" The  life  tenant  is  rightfully  in  possession  ana 
the  theory  of  adverse  possession  operates  only  wiien 
there  is  a  wrongful  possession,^*  and  it  is  consequently 

29.  Little  Rock  etc.  R.  Co.  v.  A.  618,  47  Am.  St.  Rep.  239,  41 
Rankin,  107  Ark.  487,  156  S.  W.  N.  E.  175;  Haskett  v.  Maxey,  134 
431  (grantee  by  quitclaim  charg-  Ind.  182,  19  L.  R.  A.  379;  Mixter 
ed  with  notice).  Brown  v.  v.  Woodcock,  154  Mass.  535,  28 
Huey,  103  Ga.  448,  30  S.  E.  429;  N.  E.  907;  Stevens  v.  Winship,  1 
Keys  V.  Mason,   44    Tex.    144.  Pick.  318,  11  Am.  Dec.  178;   Lum- 

30.  Wingfield  v.  Davis,  53  Ga.  ley  v.  Haggerty,  110  Mich.  552,  64 
655;  Ripley  v.  Miller,  165  Mich.  Am.  St.  Rep.  364,  68  N.  W.  243; 
470,  130  N.  W.  345  Ann.  Gas.  Pincknay  v.  Burrage,  31  N.  J.  L. 
1912C  952;  Snow  v.  Rich,  22  21;  Clute  v.  New  York  Cent.  &  H. 
Utah  123,   61   Pac.  336.  R.   Co.,    120   N.    Y.    267,   24   N.   E. 

31.  Tayloe  v.  Dugger,  66  Ala.  317;  Ladd  v.  Byrd,  113  N. 
444;    Beard   v.   Ryan,   78   Ala.   37.  Car.   466,    18   S.   E.   666;    McCorry 

32.  Robertson  v.  Wood,  15  v.  King,  3  Humph.  (Tenn.)  267, 
Tex.   1,   65  Am.  Dec.  140.  39     Am.     Dec.     165;     Hannon    v. 

33.  Washington  v.  Norwood,  Hounihan,  85  Va.  429,  12  S.  E. 
128  Ala.  391,  30  So.  405;  Ogden  157;  Titchenell  v.  TitcheneU,  74 
v.  Ogden,  60  Ark.  70,  46  Am.   St.  W.  Va.  237,  81  S.  E.  978. 

Rep.  151,  28  S.  W.  796;   Meacham  34.     See     Pickett     v.     Doe,     74 

V.  Bunting,  156  111.  586,  28  L.  R.      Ala.  131;    Hanson  v.  Ingwaldson, 


§  513] 


Adveese  Possessioiq-. 


2013 


immaterial  that  the  life  tenant  asserts  a  claim  to  the 
fee,  since  this  gives  the  remainderman  no  right  of  entry 
or  action.^^  Even  though  the  remainderman  might, 
if  he  chose,  assert  a  forfeiture  of  the  life  estate  by 
reason  of  wrongful  acts  upon  the  part  of  the  life  tenant, 
he  is,  it  seems,  under  no  obligation  so  to  do,  in  order 
to  prevent  the  running  of  the  statute."''"  In  one  or  two 
states,  however,  it  has  been  decided  that,  in  view  of  a 
statute  giving  to  a  reversioner  or  remainderman  the 
right  to  institute  a  proceeding  to  quiet  title,  it  is  in- 
cumbent upon  the  remainderman  so  to  do  in  case  a 
tenant  in  life  makes  a  conveyance  in  fee,  and  that  the 
statute  runs  against  the  remainderman  from  the  time 
of  such  conveyance."' 

One  to  whom  a  tenant  for  life  transfers  his  estate, 
whether  the  conveyance  purports  to  convey  a  life 
estate  or  a  fee  simple  estate,  acquires  the  estate  of  his 
grantor,  with  a  like  right  of  possession,  and  conse- 
quently the  statute  does  not  run  in  his  favor  as  against 
the  remainderman,  until  after  the  termination  of  tlie 
life.38 


77    Minn.    533,    77    Am.    St.    Rep. 
692.    80    N.    W.    702. 

35.  Keith  v.  Keith,  80  Mo.  125. 
125. 

36.  Wallingford  v.  Hearl,  15 
Mass.  471;  Mixter  v.  Woodcock, 
154  Mass.  535,  28  N.  E.  907; 
Moore  v.  Luce,  29  Pa.  260,  72  Am. 
Dec.  629;  But  in  Green  v.  Horn, 
207  N.  Y.  489,  101  N.  E.  430  it  is 
intimated  that  a  "positive  act 
of  disclaimer"  might  render  the 
life    tenant's    possession    adverse. 

37.  Murray  v.  Quigley,  119 
Iowa,  6,  97  Am.  St.  Rep.  276,  92 
N.  W.  869;  Garrett  v.  Olford, 
152  Iowa,  265,  132  N.  W.  379; 
Maurer  v.  Reifschneider,  89  Neb. 
673,  Ann.  Gas.  1912C,  643.  132 
N.   W.   197;    Criswell  v.   Criswell, 

2  R.  P.— 52 


101  Neb.  349,  163  N.  W.  197; 
Contra,  Armor  v.  Frey,  253  Mo. 
447,  161  S.  W.  829:  Dallas  Com- 
press Co.  v.  Smith,  190  Ala.  423, 
67   So.   289. 

38.  Winters  v.  Powell,  180 
Ala.  425,  61  So.  96;  Edwards  v. 
Bender,  121  Ala.  77,  25  So.  1010; 
Moore  v.  Childress,  58  Ark.  510, 
25  S.  W.  833;  Luquire  v.  Lee, 
121  Ga.  624,  49  S.  E.  834;  Howard 
v.  Henderson,  142  Ga.  1.  82  S.  E. 
292;  Maring  v.  Meeker,  263  111. 
136,  105  N.  E.  31;  Schroeder  v. 
Bozarth,  224  111.  310,  79  N.  E. 
583:  Gates  v.  Colfax  Northern 
Ry.  Co.,  177  Iowa.  690,  159  N.  W. 
456;  Carpenter  v.  Moorelock,  151 
Ky.  506,  152  S.  W.  575;  Mixter  v. 
Woodcock,  154  Mass.  535,  28  N.  E. 


201-1: 


Real  Peoperty. 


[§  513 


If  a  tenant  pur  autre  vie  retains  possession  after 
the  death  of  the  cestui  que  vie,  his  possession  is  usually 
regarded  as  adverse  to  the  remainderman  from  that 
time."^  as  would  be,  it  seems,  the  possession  of  the 
representatives  of  a  tenant  for  life  who  hold  over  after 
the  death  of  the  latter. 

(h)     Cotenants.      As    between    cotenants,    the 


fact  that  A  is  in  possession,^*^  or  takes  all  the  rents  and 
profits,*^  while  B  is  not  in  possession  and  receives  none 


907;  Hauser  v.  Murray,  256  Mo. 
58,  165  S.  W.  376;  Westmeyer  v. 
Gallenkamp,  154  Mo.  28,  77  Am. 
St.  Rep.  747,  55  S.  W.  2.31; 
Green  v.  Horn,  207  N.  Y.  489, 
101  N.  E.  430;  Thompson  v. 
Simpson,  128  N.  Y.  270,  28  x^J.  E. 
627;  Smith  v.  Proctor,  139  N.  0. 
314,  2  L.  R.  A.  N.  S.  172,  51  S. 
E.  889;  Cooley  v.  Lee,  170  N. 
C.  18,  86  N.  E.  720;  Carpenter  v. 
Denoon,  29  Ohio  St.  379;  Rawls 
V.  Johns.  54  S.  C.  394,  32  S.  E. 
451;  Chambers  v.  Chattanooga 
Union  R.  Co.,  130  Tenn.  459,  171 
S.  W.  84;  Davis  v.  Tebbs,  81  Va. 
600;  McDowell  v.  Beckham,  72 
Wash.  224,  130  Pac.  350. 

39.  Mann  v.  Mann,  141  Cal. 
326,  74  Pac.  995;  Jones  v.  John- 
son, 81  Ga.  293,  6  S.  E.  181;  Tur- 
ner V.  Hause,  199  m.  464,  65  N. 
E.  445;  Miller  v.  Ewing,  6  Cush. 
(Mass.)  34;  HaU  v.  French,  165 
Mo.  430;  Barrett  v.  Stradl.  73 
Wis.  ?.85,  9  Am.  St.  Rep.  795,  41 
N.  W.  439.  In  Day  v.  Cochran. 
24  Miss.  261  the  possession  of  a 
tenant  pur  antre  vie  holding  over 
is  stated  not  to  be  adverse. 

Occasionally  the  cases  suggest 
a  distinction  between  the  holding 
over  of  one  who  had  never  as- 
serted a  claim  to  more  than  a 
life   estate,  and   that  of  one  who 


entered  under  a  conveyance  from 
a  life  tenant  which  purported 
to  give  him  a  fee  simple  estate, 
the  former  possession  not  being 
regarded  as  adverse.  See  Irvine 
V.  Silbetts,  26  Pa.  477;  Bannon 
V.  Brandon,  34  Pa.  St.  263,  75 
Am.  Dec.  655;  Gernet  v.  Lynn,  31 
Pa.  St.  94;  Barrett  v.  Stradl,  73 
Wis.  385.  9  Am.  St.  Rep.  795,  41 
N.    W.    439. 

That  if  one  has  a  life  estate 
merely  by  reason  of  the  omission 
of  words  of  inheritance,  the  pos- 
session of  one  to  whom  he  under- 
takes to  convey  in  fee  is  adverse 
to  the  reversioner  after  the  life 
tenant's  death,  see  Jackson  v. 
Harsen,  7  Cow.  (N.  Y.)  323,  17 
Am.  Dec.  517;  Henley  v.  Wilson, 
77  N.  Car.  216. 

40.  McClung  v.  Ross,  5  Wheat. 
(U.  S.)  116;  Wheat  v.  Wheat,  190 
Ala.  461,  67  So.  417;  Ashley  v. 
Rector,  20  Ark.  375;  Oglesby  v. 
Hollister,  76  Cal.  136,  9  Am.  St. 
Rep.  177,  18  Pac.  146;  Russell  v. 
Stickney,  62  Fla.  569,  56  So.  691; 
Blackaby  v.  Blackaby,  185  111.  94, 
56  N.  E.  1053;  Stowell  v.  Lynch, 
269  111.  437,  110  N.  E.  51;  Pedin 
Y.  Cavins,  134  Ind.  494,  39  Am. 
St.  Rep.  276,  34  N.  E.  7;  Bader 
V.  Dyer,  106  Iowa,  715,  68  Am. 
St.  Rep.  332,  77  N.  W.  469;   John- 


513] 


Ad^-ebse  Possession. 


2015 


of  the  rents  and  profits,  is  not  of  itself  sufficient  to 
start  the  running  of  the  statute  in  favor  of  A.  B  has 
a  right  to  assume  that  A  hokls  j)Ossession,  or  other- 
wise utilizes  the  property,  with  a  full  recognition  of 
the  right  of  B  to  do  the  same  if  he  so  chooses,  and  B  is 
guilty  of  no  laches  in  failing  to  assert  his  rights.  But 
though  the  exclusive  possession  of  one  cotenant,  or 
his  exclusive  receipt  of  the  profits,  does  not  of  itself 
serve  to  show  that  his  possession  is  adverse  to  the 
other  or,  as  it  is  frequently  expressed,  that  there  is  an 
ouster  by  him  of  such  other,  it  has  been  quite  occasion- 
ally asserted  that  the  sole  and  uninterrupted  possession 
and  receipt  of  profits  by  one  cotenant,  continued  for  a 
long  series  of  years,  ^\^thout  any  interruption  or 
claim  on  the  part  of  the  cotenant,  wall  justify  a 
jury  in  inferring  an  actual  ouster  and  adverse  pos- 
session.^-    The  distinction  appears  to  be  in  effect,  that 


son  V.  Myer,  168  Ky.  430,  182  S. 
W.  190;  Mansfield  v.  McGinnis,  86 
Me.  118,  41  Am.  St.  Rep.  532,  29 
Atl.  956;  Donohue  v.  Vosper,  189 
Mich.  78,  155  N.  W.  407;  Also- 
brook  V.  Eggleston,  69  Miss.  833, 
13  So.  850;  Warfield  v.  Lindell, 
30  Mo.  272,  77  Am.  Dec.  614; 
Collier  v.  Gault,  234  Mo.  457,  137 
S.  W.  884;  Carson  v.  Broady,  56 
Neb.  648,  71  Am.  St.  Rep.  691,  77 
N.  W.  80;  Jackson  v.  Tibbitts,  9 
Cow,  (N.  Y.)  241;  Youngs  v. 
Heffner,  36  Ohio  St.  232;  Tulloch 
V.  Worrall,  49  Pa.  St.  133;  Odom 
V.  Weathersbee,  26  S.  C.  244,  T 
S.  E.  890;  Hubbard  v.  Wood's 
Lessee  1  Sneed  (Tenn.)  279; 
Gilkey  v.  Peeler,  22  Tex.  663; 
Ilolley  V.  Hawley,  39  Vt.  525; 
Clark  V.  Beard,  59  W.  Va.  669, 
53  S.  E.  597:  Lagorio  v.  Dozier, 
91  Va.  492,  22  S.  E.  239. 

41.     McKneely  v.  Terry,  61  Ark. 
527,   33   S.   W.  95:!;    Hill   v.   Cher- 


okee Const.  Co.,  99  Ark.  84,  137 
S.  W.  553;  Morgan  v.  Mitchell. 
104  Ga.  596,  30  S.  E.  792;  Todd 
V.  Todd,  117  111.  92,  7  N.  E.'583; 
Hudson  V.  Coe,  79  Me.  83,  1  Am. 
St.  Rep.  288,  8  Atl.  249;  Warfield 
V.  Lindell,  30  Mo.  272,  77  Am. 
Dec.  121  idictum) ;  Rodney  v. 
McLaughlin,  97  Mo.  426,  9  S.  W. 
726;  Velott  v.  Lewis,  102  Pa.  St. 
327. 

42.  Johnson  v.  Toulmin,  18 
Ala.  50;  Kidd  v.  Borum,  181  Ala. 
144,  Ann.  Cas.  191.5C.  1226,  61  So. 
100;  Oglesby  v.  Hollister,  76  Cal. 
l;i6,  9  Am.  St.  Rep.  177.  18  Pac. 
146;  Burns  v.  Byrne,  45  Iowa, 
287;  Chambers  v.  Pleak,  6  Dana 
(Ky.)  432;  Harrington  v.  Wil- 
liams, 173  Ky.  575,  191  S.  W.  273 
(senihle)  ;  Parker  v.  Proprietors 
of  Locks  &  Canals  on  Merrimack 
River,  3  Mete.  (Mass.)  91,  37  Am. 
Dec.  121;  Lefavour  v.  Homan,  :5 
Allen  (Mass  )  ?.',a-  .Joyce  v.  Dyer, 


2016 


Real  Property. 


[§  513 


while  the  exclusive  possession  of  one  cotenant  does  not  in- 
volve an  ouster  of  the  other,  so  as  to  start  the  running  of 
the  statute,  the  fact  that  one  cotenant  is  in  sole  pos- 
session for  twenty,  thirty,  or  forty  years,  without  any 
claim  being  made  by  the  other,  justifies  a  finding  that 
an  ouster  had  taken  place,  ''because  men  do  not  ordi- 
narily sleep  on  their  rights  for  so  long  a  period,  and  a 
strong  presumption  arises  that  actual  proof  of  the 
original  ouster  has  become  lost  by  lapse  of  time."*^ 
While  the  sole  possession  of  one  cotenant  is  prima 
facie  not  adverse  to  the  other,  it  may,  as  has  been 
above  indicated,  become  adverse  to  him,  and  whether 
it  has  so  become  adverse  is  ordinarily  a  question  of 
fact.^*  The  cotenant  in  possession  may  deny  the  right 
of  the  other  either  by  express  statement,^^  or  by  im- 


189  Mass.  64,  109  Am.  St.  Rep. 
603,  75  N.  E.  81;  Warfleld  v.  Lin- 
dell,  38  Mo.  561,  90  Am.  Dec.  443; 
Lund  V.  Nelson,  89  Neb.  449,  131 
N.  W.  919;  Jackson  v.  Whitbeck, 
6  Cow.  (N.  Y.)  632,  16  Am.  Dec. 
454;  Dobbins  v.  Dobbins,  141  N. 
Car.  210,  10  L.  R.  A.  (N.  S.)  185, 
115  Am.  St.  Rep.  682,  53  S.  E. 
870;  Bolton  v.  Hamilton,  2  Watts 
&  S.  (Pa.)  294,  37  Am.  Dec.  509; 
Rider  v.  Maul,  46  Pa.  St.  376 
(semUe) ;  Rohrbach  v.  Sanders, 
212  Pa.  636,  62  Atl.  27;  Hubbard 
V.  Wood,  1  Sneed  (Tenn.)  279; 
Drewery  v.  Nelms,  132  Tenn.  254, 
177  S.  W.  946;  Baber  v.  Baber,  121 
Va.  740,  94  S.  E.  209;  Doe  v. 
Prosser,  Cowp.  217;  See  Sagen  & 
Nelson  v.  Gudmanson,  164  Iowa, 
440,    145    N.   W.   954. 

43.  Lefavour  v.  Homan,  3 
Allen    (Mass.)    354. 

44.  Carpentier  v.  Mendenhall, 
28  Cal.  484,  87  Am.  Dec.  135; 
Oglesby  v.  Hollister,  76  Cal.  136, 
9  Am.  St.  Rep.  177,  18  Pac.  146; 
Gill    V.    Fauntleroy,    8    B.    Mon. 


(Ky.)  177;  La  Fountain  v.  Dee, 
110  Mich.  347,  68  N.  W.  220; 
Harmon  v.  James,  7  Sm.  &  M. 
(Miss.)  Ill,  45  Am.  Dec.  296; 
Warfleld  v.  Lindell,  38  Mo.  581, 
90  Am.  Dec.  443;  Golden  v.  Tyer, 
180  Mo.  196,  79  S.  W.  143;  Beall 
V.  McMenemy,  63  Neb.  70,  93  Am. 
St.  Rep.  427,  88  N.  W.  134;  Clark 
V.  Crego,  47  Barb.  (N.  Y.)  599; 
Bolton  V.  Hamilton,  2  Walls  &  S. 
(Pa.)  294,  37  Am.  Dec.  509; 
Keyser  v.  Evans,  30  Pa.  St.  509; 
Workman  v.  Guthrie,  29  Pa.  St. 
495,  72  Am.  Dec.  654;  PurceU  v. 
Wilson,  4  Gratt.   (Va.)    16. 

45.  Brady  v.  Huff,  75  Ala.  80; 
Ashley  v.  Rector,  20  Ark.  359; 
Oglesby  v.  Hollister,  76  Cal.  136, 
9  Am.  St.  Rep.  177,  18  Pac.  146; 
Coogler  V.  Rogers,  25  Fla.  853,  7 
So.  391;  King  v.  Carmichael,  136 
Ind.  20,  43  Am.  St.  Rep.  303,  35 
N.  E.  509;  Gill  v.  Fauntleroy,  8 
B.  Mon.  (Ky.)  177;  Fenton  v. 
Miller,  108  Mich.  246,  65  N.  W. 
966.  Thornton  v.  York  Bank,  45 
Me.    158.    Phillips    v.    Gregg,    10 


§  513] 


Adverse  Possession. 


201: 


plication,  as,  for  instance,  by  liis  actual  exclusion  of  the 
otlier,^^^  or  by  utilizing  all  or  part  of  the  property  in 
such  a  way  as  to  show  an  intention  to  make  a  per- 
manent appropriation  thereof  to  his  o^\ti  use.*^  But 
the  statute  does  not  begin  to  run  in  his  favor  unless 
the  other  acquires  actual  notice  of  the  adverse  char- 
acter of  his  possession,  or  unless  his  assertion  of  an 
exclusive  claim,  however  made,  is  so  open  and  notori- 
ous that  the  otlier,  exercising  reasonable  diligence, 
would  necessarily  learn  thereof.'** 


Watts,  (Pa.)  158,  36  Am.  Dec. 
158;  Hubbard  v.  Wood,  1  Sneed 
(Tenn.)  279;  Church  v.  Waggon- 
er,  78   Tex.   200,   14   S.   W.   581. 

46.  Carpenter  v.  Webster,  27 
Cal.  524;  Norris  v.  Sullivan,  47 
Conn.  474;  Goodwin  v.  Bragaw, 
87  Conn.  31,  86  Atl.  668;  Hudson 
V.  Coe,  79  Me.  83,  1  Am.  St.  Rep. 
288,  8  Atl.  249;  Jordan  v.  Surgh- 
nor,  107  Mo.  520,  17  S.  W.  1009; 
Humbert  v.  Trinity  Church,  24 
Wend.  (N.  Y.)  587;  Forward  v. 
Deetz,  32  Pa.  St.  69;  Jefcoat  v. 
Knotts,  13  Rich.  L.  (S.  C.)  50. 
Hubbard  v.  Wood's  Lessee  1  Sneed 

(Tenn.)    279. 

47.  Roumillot  v.  Gardner,  113 
Ga.  60,  53  L.  R.  A.  729,  38  S.  E. 
365;  Laraway  v.  Larue,  63  Iowa, 
407,  19  S.  W.  242;  Bennett  v. 
Clemence,  6  Allen  (Mass.)  10; 
Capen  v.  Leach,  182  Mass.  175,  65 
N.  E.  63;  Warfield  v.  Lindell,  38 
Mo.  561,  90  Am.  Dec.  443;  Dunlap 
V.  Griffith.  146  Mo.  283,  47  S.  W. 
917;  Childs  v.  Kansas  City.  St.  J. 
&  C.  B.  R.  Co.— (Mo.)— ,  17  S.  W. 
954;  Zapf  v.  Carter,  70  N.  Y.  App. 
Div.  395,  75  N.  Y.  Supp.  197;  An- 
nely  v.  De  Saussure,  26  S.  C. 
497.  40  Am.  St.  Rep.  725.  2  S.  E. 
490.  Cox  V.  Tompkinson.  39  Wash. 
70,     80     Pac.     1005;     Cochran     v. 


Cochran,  55  W.  Va.  178,  46  S.  E. 
924. 

48.  Barr  v.  Gratz,  4  Wheat.  (U. 
S.)  213,  4  L.  Ed.  553;  McClung 
V.  Ross,  5  Wheat.  (U.  S.)  116, 
5  L.  Ed.  46;  Packard  v.  Johnson, 
57  Cal.  180;  Unger  v.  Mooney,  63 
Cal.  586,  49  Am.  Rep.  100;  Stokely 
V.  Conner,  69  Fla.  412,  68  So.  452; 
Christopher  v.  Mungen,  71  Fla. 
545,  71  So.  625;  Grand  Tower 
Min.,  Mfg.  &  Transp.  Co.  v. 
Gill,  111  111.  541;  Stowell  v. 
Lynch,  269  111.  437,  110  N.  E.  51; 
Warfield  v.  Lindell,  30  Mo.  272,  77 
Am.  Dec.  614,  38  Mo.  581,  90  Am. 
Dec.  443.  Hynds  v.  Hynds,  253 
Mo.  20,  161  S.  W.  812;  Culver  v. 
Rhodes,  87  N.  Y.  348;  Lodge  v. 
Patterson,  3  Watts  (Pa.)  74,  27 
Am.  Dec.  335;  Saunders  v.  Terry, 
116  Va.  495,  82  S.  E.  68;  Vermont 
Marble  Co.  v.  Eastman.  91  Vt. 
425,  101  Atl.  151. 

That  actual  notice  to  the  coten- 
ant  not  in  possession  is  unneces- 
sary, see  Van  Gunden  v.  Virginia 
Coal  &  Iron  Co..  52  Fed.  838.  3  C. 
C.  A.  294;  Elder  v.  McClaskey,  70 
Fed.  529,  17  C.  C.  A.  251;  Kidd  v. 
Borum,  181  Ala.  144,  Ann.  Cas. 
1915C  1226,  61  So.  100;  Unger 
V.  Mooney,  63  Cal.  586,  49  Am. 
Rep.  100;   Oglesby  v.  Hollister,  76 


2018 


Real  Peoperty. 


[§  513 


The  cotenant  out  of  possession  is  not  charged  with 
notice  that  the  possession  of  the  other  is  adverse  to 
him,  so  that  the  statute  will  run  in  favor  of  such  other, 
by  the  mere  fact  that  the  other  has  taken  from  a  third 
person  a  conveyance  which  purports  to  transfer 
the  whole  j^roperty.^^  And,  accepting  the  view  which 
is  usually  approved,  that  the  purpose  of  the  recording 
acts  is  merely  to  afford  protection  to  subsequent  pur- 
chasers,^*^ the  record  of  such  a  conveyance  to  one  co- 
tenant  is  not  sufficient  to  charge  the  other  with  notice 
of  the  former's  adverse  claim.  But  while  there  are  at 
least  two  decisions  to  this  etfect,^^  there  are  others 
which  give  to  such  record  the  effect  of  charging  with 


Cal.  136,  9  Am.  St.  Rep.  177,  18 
Pac.  146;  Roberts  v.  Cox,  259  111. 
322,  102  N.  E.  204;  Knowles  v. 
Brown,  69  Iowa,  11,  28  N.  W. 
409;  Wilson  v.  Hoover,  154  Ky. 
1,  156  S.  W.  880;  Greenhill  v- 
Biggs,  85  Ky.  155,  7  Am.  St.  Rep. 
579,  2  S.  W.  774;  Fuller  v. 
Swensberg,  106  Mich.  305,  58  Am. 
St.  Rep.  481,  64  N.  W.  463;  Peck 
V.  Lockridge,  97  Mo.  549,  11  S. 
W.  246;  Dunlap  v.  Griffith,  146 
Mo.  283,  47  S.  W.  917;  Culver  v. 
Rhodes,  87  N.  Y.  348;  Zapf  v. 
Carter,  70  N.  Y.  App.  Div.  395.  75 
N.  Y.  Supp.  197;  Lodge  v.  Patter- 
son, 3  Watts  (Pa.)  74,  27  Am. 
Dec.  335  Miller  v.  Cramer,  48  S. 
C.  282,  26  S.  E.  657;  Humphreys 
V.  Edwards,  89  Tex.  512,  36  S.  W. 
333,  434;  Mathews  v.  Baker,  47 
Utah,  532,  155  Pac.  427;  Baber  v 
Baber,  121  Va.  740,  94  S.  E.  209; 
Cox  V.  Tomnkinson,  39  W^sh.  70, 
80.  Pac.  1005;  Clark  v.  Beard,  59 
W.  Va.  669,  53  S.  E.  597;  Roberts 
V.  Decker,  120  Wis.  102  (semble). 
Compare  Gracy  v.  Fielding,  71 
Fla.     1,     70     So.     625:     Kidd     v. 


Borum,  181  Ala.  144,  Ann.  Cas. 
1915C  1226,  61  So.  100;  Custer 
V.  Hall,  71  W.  Va.  119,  76  S.  B. 
183. 

It  has  been  decided  in  a  recent 
case  that  if  cotenants  in  posses- 
sion have  no  knowledge  of  the 
fact  that  there  are  other  coten- 
ants, their  possession  is  to  be 
regarded  as  adverse  to  the  latter 
apart  from  any  question  of  notice, 
actual  or  constructive.  Bourne  v. 
Wiele,  159  Wis.  340,  150  N.  W. 
420. 

49.  Inglis  v.  Webb,  117  Ala. 
387,  23  So.  125;  Donason  v.  Bar- 
bero,  230  111.  138,  82  N.  E.  ff20. 
Craig  V.  Cox,  255  111.  564,  99  N. 
E.  647;  Hignite  v.  Hignite,  65 
Miss.  447,  4  So.  345;  Culver  v. 
Rhodes,  87  N.  Y.  348;  Barrett  v. 
McCarty,  20  S.  D.  75,  104  N.  W. 
907;  Holley  v.  Hawley,  39  Vt.  532, 
94    Am.    Dec.    350. 

50.  Post  §  567(a). 

51.  Cocks  V.  Simmons,  55  Ark. 
104,  29  Am.  St.  Rep.  28,  17  S.  W. 
594:  Holley  v.  Hawley,  39  Vt. 
525. 


§  513] 


Adveese  Possession". 


2019 


notice  thereof  the  tenant  out  of  possession.''-  Under 
these  latter  decisions,  a  cotenant  who  refrains  from 
taking  possession  is  bound  to  inspect  the  records  in 
order  to  ascertain  whether  the  possession  of  the  other 
has  become   adverse  to  him. 

If  a  cotenant  makes  a  conveyance  which  purports 
to  convey  not  merely  his  undivided  interest  in  the 
land,  but  the  entire  interest  therein,  or  in  a  part  there- 
of, and  the  grantee  in  the  conveyance  takes  possession 
accordingly,  without  any  recognition  of  the  rights  of 
the  other  cotenant,  out  of  possession,  the  possession  of 
the  grantee  is  regarded  as  adverse  to  the  latter,  and 
the  latter  is  charged  with  notice  to  this  effect.  He  is 
charged  with  notice  of  the  fact  that  a  person  other 
than  his  original  cotenant  is  in  possession  of  the 
land,  and  he  is  also  charged  with  notice  of  the  char- 
acter of  the  claim  of  such  person. '  and  cannot  assume 
that  it  is  other  than  such  as  is  indicated  by  the  con- 
veyance under    which    he    holds."'-''      If,    liowever,    the 


52.  Ames  v.  Howes,  13  Idaho, 
756,  93  Pac.  35;  Puckett  v.  Mc- 
Daniel,  8  Tex.  Civ.  App.  630,  28 
S.  W.  360;  Morgan  v.  White,  50 
Tex.  Civ.  App.  318,  110  S.  W. 
491;  Craven  v.  Craven,  68  Neb. 
459,  94  N.  W.  604;  McCann  v. 
Welch,  106  Wis.  142.  81  N.  W. 
996. 

53.  Jackson  v.  Huntington,  5 
Pet.  402,  8  L.  Ed.  170;  Elder  v. 
McClaskey,  70  Fed.  529,  17  C.  C. 
A.  251.  Fielder  v.  Childs,  73  Ala. 
567;  Brown  v.  Bocquin,  57  Ark. 
97,  20  S.  W.  813;  Winterburn  v. 
Chambers,  91  Cal.  170,  27  Pac. 
658;  McDowell  v.  Sutlive,  78  Ga. 
142,  2  S.  E.  937;  Bowman  v. 
Owens,  133  Ga.  49,  65  S.  E.  156; 
Waterman  Hall  v.  Waterman,  220 
in.  569.  77  N.  E.  142;  King  v. 
Carmichael,  136  Ind.  20,  43  Am. 
St.  Rep.  303,  35  N.  E.  509;   Blank- 


enhorn  v.  Lenox,  123  Iowa,  67,  98 
N.  W.  556;  Clarke  v.  Dirks,  178 
Iowa,  335,  160  N.  W.  31;  Rose 
v.  Ware,  115  Ky.  420,  74  S.  W. 
188;  Segelbohm  v.  Waldnef,  101 
Kan.  156,  165  Pac.  049.  Soper  v. 
Lawrence  Bros.  Co.,  98  Me. 
268,  99  Am.  St.  Rep.  397,  56  Atl. 
908;  Merryman  v.  Cumberland 
Paper  Co.,  98  Md.  223,  56  Atl.  364; 
Parker  v.  Proprietors  of  Locks  & 
Canals  on  Merrimack  River,  3 
Mete.  (Mass.)  91,  37  Am.  Dec. 
121;  Joyce  v.  Dyer,  189  Mass.  64, 
109  Am.  St.  Rep.  603,  75  N.  E. 
81;  Phipps  V.  Crowell,  224  Mass. 
342,  112  N.  E.  648:  Fuller  v. 
Swensberg,  106  Mich.  305,  58  Am. 
St.  Rep.  481,  64  N.  W.  463;  Brig- 
ham  V.  Reau,  139  Mich.  256,  102 
N.  W.  845;  Hanson  v.  Ingwald- 
son.  77  Minn.  533.  77  Am.  St.  Rep. 
692,    80    N.    W.    702;     Sanford    v. 


2020 


Real  Property. 


[§  513 


conveyance  purports  to  be,  not  of  the  entire  interest  in 
the  property,  but  of  the  interest  of  the  grantor  merely, 
the  possession  of  the  grantee  is  prima  facie  like  that 
of  his  grantor,  that  of  a  cotenant  only,  and  not  adverse 
to  the  other  cotenant,  and  the  latter  is  justified  in  as- 
suming this  to  be  the  case.^^ 

(i)    Mortgagor  and  mortgagee.     Even  in  those 


states  in  which  the  mortgagee  is  regarded  as  having 
the  legal  title,  so  that  there  might  otherwise  be  room 
for  the  application  of  the  doctrine  of  adverse  pos- 
session   as    between    the    mortgagor    and    mortgagee. 


Safford,  99  Minn.  380,  109  N.  W. 
819;  Eastman  v.  Hinton,  86  Miss. 
604,  109  Am.  St.  Rep.  726,  38  So. 
779;  Foulke  v.  Bond,  41  N.  J.  L. 
527;  Baker  v.  Trujillo  De  Armijo, 
17  N.  M.  383,  128  Pac.  73;  Sweet- 
land  V.  Buell,  164  N.  Y.  541,  79 
Am.  St.  Rep.  676,  58  N.  E.  663; 
Wheeler  v.  Taylor,  32  Ore.  421, 
67  Am.  St.  Rep.  540,  52  Pac.  183; 
Culler  V.  Motzer,  13  Serg.  &  R. 
(Pa.)  356,  15  Am.  Dec.  604;  Sud- 
duth  V.  Sumeral,  61  S.  C.  276,  85 
Am.  St.  Rep.  83,  39  S.  E.  534: 
Weisinger  v.  Murphy,  2  Head 
(Tenn.)  679;  Virginia  Coal  & 
Iron  Co.  V.  Hylton,  115  Va.  418, 
Ann.  Cas.  1915A  741.  79  S.  E. 
337;  Church  v.  State,  65  Wash. 
50,  117  Pac.  711;  Roberts  v. 
Decker,  120  Wis.  102,  97  N.  W. 
519.  In  North  Carolina  a  differ- 
ent view  has  apparently  been 
taken.  Hardee  v.  Weathington, 
130  N.  C.  91,  40  S.  E.  855;  Bullin 
V.  Hancock,  138  N.  C.  198,  50  S. 
E.  621;  Roscoe  v.  Roper  Lumber 
Co.,  124  N.  C.  42,  32  S.  E.  389. 

If  there  is  no  change  of  posses- 
sion after  the  conveyance,  as 
when  the  person  who  held  as 
tenant    under    the    grantor    con- 


tinues to  hold  under  the  grantee, 
the  other  cotenant  is  not  charge- 
able with  notice  that  the  posses- 
sions has  become  adverse.  Pick- 
ens V.  Stout,  67  W.  Va.  422,  68 
S.  E.  354;  Long  v.  Morrison,  251 
III.  143,  95  N.  E.  1075.  And  so 
when  a  cotenant  makes  a  con- 
veyance of  the  whole,  even  though 
this  be  recorded,  but  he  retains 
the  exclusive  possession.  Brasher 
V.  Taylor,  109  Ark.  281,  159  S.  W. 
1120. 

54.  Bath  V.  Valdez,  70  Cal.  350, 
7  Pac.  487;  Gracy  v.  Fielding,  71 
Fla.  1,  70  So.  625;  Grand  Tower 
Min.,  Mfg.  &  Transp.  Co.  v.  Gill, 
111  111.  541;  Stevens  v.  Wait,  112 
111.  544;  Moore  v.  Antill,  53  Iowa, 
612,  6  N.  W.  14;  Curtis  v.  Barber, 
131  Iowa,  400,  117  Am.  St.  Rep. 
425,  108  N.  W.  755;  Lefavour  v. 
Haman,  3  Allen  (Mass.)  356;  See 
McQuiddy  v.  Ware,  67  Mo.  74; 
Woods  V.  Banks,  14  N.  H.  Ill; 
Foulke  V.  Bond,  41  N.  J.  L.  547; 
Sharp  V.  Brandow,  15  Wend.  (N. 
Y.)  597;  Edwards  v.  Bishop,  4  N. 
Y.  64.  So  in  the  case  of  a  con- 
veyance in  terms  of  an  undivided 
interest.  Wilson  v.  Storthz,  177 
Ark.  418,   175   S.  W.   45. 


§  513] 


Adverse  Possession. 


2021 


it  is  recognized  that  the  possession  of  the  mortgagor 
is  not  adverse  to  the  mortgagee  unless  he  denies  the 
latter 's  rights  in  an  open  and  notorious  manner,^^ 
and  the  possession  of  the  mortgagor's  transferee  is 
likewise  not  adverse  to  the  mortgagee. 

The  possession  of  the  mortgagee  before  default 
is  regarded  as  in  behalf  of  the  mortgagor,  to  whom  he 
must  account  for  the  rents  and  profits;"'*^  and  is  con- 
sequently not  adverse,  in  the  absence  of  a  denial  of  the 
mortgagor's  rights.^"  But  if  the  mortgagee  takes  i:)os- 
session  after  condition  broken,  for  the  purpose  of 
realizing  his  security,  his  possession  is  presmned  to  be 
adverse,  or,  as  it  is  ordinarily  expressed  in  jurisdic- 
tions where  the  legal  title  is  in  the  mortgagee,  a  court 
of  equity  will,  in  such  case,  apply  the  analogy  of  the 
statute  of  limitations  as  against  the  right  of  tlie  mort- 
gagor to  redeem,  in  the  absence  of  any  recognition  by 
him  of  the  mortgagor's  title. ^^ 


55.  Gafford  v.  Strauss,  89  Ala. 
282,  7  L.  R.  A.  568,  18  Am.  St. 
Rep.  Ill,  7  So.  248.  Whittington 
V.  Flint,  43  Ark.  504,  51  Am.  Rep. 
572;  Norrls  v.  He,  152  111.  190,  43 
Am.  St.  Rep.  233,  38  N.  E.  762; 
Holmes  v.  Turner's  Falls  Co.,  150 
Mass.  535,  6  L.  R.  A.  283,  23  N. 
E.  305;  Chouteau  v.  Riddle,  110 
Mo.  366,  19  S.  W.  814;  Tripe  v. 
Marcy,  39  N.  H.  439;  Colton  v. 
Depew,  60  N.  J.  Eq.  454,  83  Am. 
St.  Rep.  650,  46  Atl.  728;  Martin 
V.  Jackson,  27  Pa.  St.  504,  67  Am. 
Dec.  489;  Creigh's  Heirs  v.  Hen- 
son,  10  Gratt.  (Va.)  231;  Flynn 
V.  Lee,  31  W.  Va.  487,  7  S.  E.  430. 

56.  See  post  §  C13(c). 

57.  Warder  v.  Enslen,  73  Cal. 
291,  14  Pac.  874;  Jones  v. 
Foster,  175  III.  459,  51  N.  E.  862, 
Green  v.  Turner,  38  Iowa,  112; 
McPherson  v.  Hayward,  81  Me. 
329,  17  Atl.  164;    Holmes  v.  Tur- 


ner's Falls  Co.,  150  Mass.  535,  6 
L.  R.  A.  283,  23  N.  E.  305;  Anding 
V.  Davis,  38  Miss.  574,  77  Am.  Dec. 
658;  Kip  v.  Hirsh,  53  N.  Y.  Super. 
Ct.  1;  Robinson  v.  Fife,  3  Ohio 
St.  551;  West  v.  Middlessex  Bank- 
ing Co.,  33  S.  D.  465,  146  N.  W. 
598. 

58.  Hughes  v.  Edwards,  9 
Wheat  (U.  S.)  489,  6  L.  Ed.  142; 
Byrd  v.  McDaniel,  •  33  Ala.  18; 
Tibbs  V.  Reed,  105  Ky.  331,  49 
S.  W.  6,  (semble) ;  Munro  v. 
Barton,  98  Me.  250,  56  Atl.  844: 
Ayres  v.  Waite,  10  Cush.  (Mass.) 
72;  Stephens  v.  Dedham  Institu- 
tion, 129  Mass.  547;  Nelson  v. 
Ratliff,  72  Miss.  656,  18  So.  487: 
Essex  V.  Smith,  97  Neb.  649,  150 
N.  W.  1022;  Hall  v.  Hooper,  47 
Neb.  Ill,  66  N.  W.  33.  Clark  v. 
Clough,  65  N.  H.  43,  23  Atl.  521; 
Hubbell  V.  Sibley,  50  N.  Y.  468; 
Knowlton  v.  Walker,  13  Wis.  295. 


2022  Real  Peoperty.  [§  513 
(j)      Mortg^agor    and    foreclosure     purchaser. 


There  are  decisions  that  the  possession  of  tho  mort- 
gagor is  not  adverse  as  against  the  purchaser  at  fore- 
closure sale,^^  a  view  which  appears  to  harmonize  with 
the  like  view  which  has  lieen  taken  with  reference  to 
the  possession  of  a  judgment  debtor  after  sale  under 
execution  on  the  judgment.'^*' 

The  possession  of  the  purchaser  under  an  in- 
valid foreclosure  sale  being  in  effect  that  of  an  assignee 
of  the  mortgage,**^  the  right  of  redemption  as  against 
him  will  also  ordinarily  be  barred  after  the  statutory- 
period.*'^ 

(k)    Surviving  spouse  and  heirs.    If,  upon  the 


death  of  a  tenant  in  fee  simple,  his  widow  has,  by  the 
law  of  that  jurisdiction,  the  right  to  hold  possession  of 
the  land  until  the  assignment  of  her  dower,  the  statute 
of  limitations  cannot  run  in  her  favor  as  against  the 
heirs  or  devisees,  since  they  have  no  right  of  entry  or 
action,''"^  and  it  is  immaterial  tliat  they  might,  if  they 

59.  Bosley  v.  Stewart,  140  Co.,  33  S.  D.  465,  146  N.  W.  598. 
Iowa,  101,  117  N.  W.  1103;  Els-  63.  Robinson  v.  Allison,  124 
worth  V.  Eslick,  91  Kan.  287,  137  Ala.  325,  27  So.  461;  Padgett  v. 
Pac.  973;  Cook  v.  Travis,  20  N.  Y.  Norman,  44  Ark.  490;  Jarrett  v. 
400;  Neilson  v.  Grignon,  85  Wis.  Jarrett,  113  Ark.  134,  167  S.  W. 
550,  55  N.  W.  890.  Contra,  Garren  482;  Riggs  v.  Girard,  133  111.  619. 
V.  Fields,  131  Ala.  304,  30  So.  775.  24   N.   E.   1031;    Renter   v.    Stuck- 

60.  Bradford  v.  Russell,  79  Ind.  art,  181  111.  529,  54  N.  E.  1014; 
64;  Jones  v._  Lickliter,  154  Ky.  Westmeyer  v.  Gallenkamp,  154 
848,  159  S.  W.  652;  Snowden  v.  Mo.  28,  55  S.  W.  231,  77  Am.  St. 
McKinney,  7  B.  Mon.  258;  Jackson  Rep.  747;  Meddis  v.  Kenney, 
V.  Sternbergh,  1  Johns.  Cas.  153;  176  Mo.  200,  98  Am.  St.  Rep.  496; 
Swift  V.  Agnes,  33  Wis.  228.  Wofford  v.  Martin,— Mo.— ,  183  S. 

61.  Post  §  654.  W.     603;       Larson    v.    Anderson, 

62.  Chickering  v.  Failes,  26  74  Neb.  361,  104  N.  W.  925;  Reed 
in.  507;  Jellison  v.  Halloran,  44  v.  Hackney,  69  N.  J.  L.  27,  54 
Minn.  199,  46  N.  W.  332;  Miner  Atl.  229:  Perkins  v.  Perkins,— 
V.  Beekman,  50  N.  Y.  337;  Hamm  Tex.  Civ.  App.— ,  166  S.  W.  915: 
V.  McKenny,  73  Ore.  347,  144  Pac.  Hulvey  v.  Hulvey,  92  Va.  182,  23 
435;  Houts  v.  Hoyne,  14  S.  Dak.  S.  E.  233.  See  editorial  note  14 
176;    West  v.   Middlesex   Banking  Harvard    Law    Review,    149. 


§  513]  Adverse  PossEvSstox.  2023 

choose,  have  her  dower  assigned.^-'  And  the  case  is 
the  same  after  dower  is  assigned.  She  is  in  the 
position  of  a  life  tenant,  and  the  statute  cannot  run 
during  her  life  as  against  the  reversioners  or  remain- 
derman.*'^ 

Even  though  the  widow's  possession  is  otherwise 
without  right,  it  is,  apparently,  regarded  prima  facie 
as  by  permission  of,  or  in  behalf  of,  the  heirs,  and  so 
not  adverse  to  them,''"  but  it  may  become  adverse  by 
reason  of  her  repudiation  of  the  rights  of  the  heirs."'^ 

If  a  widow  marries  again,  and  the  second  husband 
lives  with  her  on  the  land  of  her  first  husbtaid,  the 
possession,  even  if  conceded  to  be  in  the  second 
husband,  is  prima  facie  not  adverse  to  the  children  of 
the  first  marriage,  so  as  to  cause  the  statute  of  limi- 
tations to  run  in  his  favor.*'^  He  may,  however,  it  has 
been  decided,  so  assert  a  right  of  possession,  under 
particular  circumstances,  that  the  statute  will  so  run.'^^ 

64.  See  Foy  v.  Wellborn,  112  Givens  v.  Ott,  222  Mo.  395,  121  S. 
Ala.  160,  20  So.  604.  W.  23. 

65.  Neely  v.  Martin,  126  Ark.  67.  Hays  v.  Lemoine,  156  Ala. 
1,  189  S.  W.  182;  Green  v.  Ellis.  465,  47  So.  97;  Brinkley  v.  Taylor, 
145  Ga.  241,  88  S.  E.  976;  Swear-  111  Ark.  305,  163  S.  W.  521; 
engln  v.  Stafford, — Mo. — ,  188  S.  Hogan  v.  Kurtz,  1  MacArth. 
W.  97;  Graves  v.  Causey,  170  N.  C.)135;  Williams  v.  Thomas,  65 
C.  175,  86  S.  E.  1030;  Cockrell  v.  Iowa,  183,  21  N.  W.  509;  Munroe 
Curtis,  83  Tex.  105,  18  S.  W.  436.  v.   Wilson,   68   N.  H.   580,  41   Atl. 

66.  Brinkley  v.  Taylor,  111  240;  Colgan  v.  Pellens,  48  N.  J. 
Ark.  305,  163  S.  W.  521;  Sloss-  L.  27,  2  Atl.  633;  Davis  v.  Dick- 
Sheffield  Steel  &  Iron  Co.  v.  Mc-  son,  92  Pa.  St.  365;  Humphreys 
Cullough,  177  Ala.  272,  59  So.  658;  v.  Edwards,  89  Tex.  512,  36  S.  VV. 
Frazer   v.    Frazer,    1    Mete.    (Ky.)  333. 

593;    Moore  v.   Gulley,    30   Ky.    L.  68.     Johnson     v.     Oldham,     126 

Rep.    442,    98    S.    W.    1011.     (See  Ala.   309,   28   So.   487,   85  Am.   St. 

Bush  v.  Fitzgeralds,— Ky.— 125  S.  Rep.  30;    Dewitt  v.  Shea,  20.!   111. 

W.  716);    Shoultz  v.  Lee,  260  Mo.  923,  67  N.  E.  761,  96  Am.  St.  Rep. 

719,    168     S.     W.     1146;     Reed    v.  311;     Livingston     v.     Pendergast, 

Hackney,   69   N.   .1.   L.   27,   54   Atl.  34    N.    H.    544. 

229;   Larson  v.  Anderson,  74  Neb.  69.     Munroe  v.  Wilson,  68  N.  H. 

361,   104   N.   W.   92.-);    Hall   v.   Ma-  580,   41   Atl.   240. 
thias,  4  Watts  &  S.  331.     Contra, 


2024  Eeal  Peopeety.  [§  513 

If,  upon  the  death  of  a  tenant  in  fee  simple,  her 
surviving  husband  has  a  life  estate  in  the  land,  the 
statute  cannot  run  in  his  favor  as  against  the  .heirs  or 
devisees,  since  they  have  no  right  of  entry  or  actionJ^ 
If  the  surviving  husband  has  no  estate  in  the  land, 
whether  the  statute  of  limitations  will  run  in  his 
favor  depends  on  whether  his  possession  is  to  be  re- 
garded as  adverse  to  the  heirs.  There  are  decisions 
to  the  effect  that  it  is  prima  facie  adverse,'''^  and  also 
decisions  to  the  contrary.'^^ 

(1)    Parent  and  child.     A  child  who  is  upon 

the  land  of  his  parent  may  be  there,  and  frequently 
is  there,  as  a  licensee  merely,  in  which  case  he  is  not 
in  possession.'''^  And  if  he  is  in  possession  his  jDosses- 
sion  is  apt  to  be  permissive  merely,  the  possession  of 
a  tenant,  and  so  not  adverse  to  the  parent.'^*  The 
child  may,  however,  be  in  possession  purely  in  his 
own  right,  and  not  as  the  licensee  or  tenant  of  the 
parent,'''^  as  for  instance  when  he  holds  under  an  oral 
gift,"^^  and  in  such  case  the  statute  will  ordinarily  run 
in  his  favor. 

It  has  been  judicially  stated  that  the  relationship 
of  parent  and  child  raises  a  presumption  that  the 
parent's  possession  of  land  belonging  to  the  child  is 

70.  Ante,  §  506.  Hunt   v.    Hunt,    3    Mete.    (Mass.) 

71.  Pattison  v.  Dryer,  98  Mich.  175,  37  Am.  Dec.  130;  O'Bryan  v. 
564,  57  N.  W.  814;  Norwood  v.  Allen,  108  Mo.  227,  32  Am.  St. 
Totten,  166  N.  C.  648,  82  S.  E.  Rep.  595,  18  S.  W.  892;  Haggard 
951.  V.    Martin, — Tex.    Civ.   App. — ,    34 

72.  Marshall  v.  Pierce,  12  N.  H.  S.  W.  660. 

127;   Jackson  v.  Cairns,  20  Johns.  75.     Lane     v.     Copley,     1     Root 

(N.  Y.)    301.  (Conn.)     68;     New    Haven    Trust 

73.  See  Butler  v.  Butler,  133  Co.  v.  Camp,  81  Conn.  539,  71 
Ala.  377,  32  So.  579;  Wyatt  v.  Atl.  788;  Roberts  v.  Roberts,  2 
Elam,  23  Ga.  201;  Hume  v.  Hop-  McCord  L.  (S.  C.)  268,  13  Am. 
kins,  140  Mo.  65,  41  S.  W.  784.  Dec.   721. 

74.  See  Ellsworth  v.  Hale,  33  76.  Wilson  v.  Campbell,  119 
Ark.  633;  Brettman  v.  Fischer,  Ind.  286,  21  N.  E.  893.  Cyrus  v. 
216  111.  142,  74  N.  E.  777:  Wells  Holbrook,  32  Ky.  L.  Rep.  466,  106 
v.   Head.   12   B.   Mon.    (Ky.)    170;  S.  W.  300;    Malone  v.  Malone.  88 


§  513] 


Adverse  Possession. 


2025 


not  adverse  to  the  latter.""  But  it  may  be  questioned 
whether  there  is  properly  any  such  presumption.  The 
relationship  is  merely  one  of  the  considerations  tend- 
ing to  show  that  the  possession  is  permissive,  and  the 
weight  to  be  imputed  to  this  consideration  would  vary 
with  the  age  of  the  child  and  the  other  circumstances 
of  the  case.'^^  The  courts,  however,  while  recognizing 
that  the  parent's  possession  may  be  adverse  to  the 
children,'^''  have  occasionally  tended  to  give  considerable 
weight  to  the  relationship  as  showing  the  contrary.^*' 
And  they  ordinarily  hold  that  the  statute  does  not  run 
in  favor  of  a  surviving  parent  as  against  liis  children, 
some  or  all  of  whom  are  minors  at  the  time  of  his 
entry,  he  being  in  such  case  regarded  as  upon  the  land 
in  the  capacity  of  natural  guardian  or  bailiff.^^ 

(m)  Husband  and  wife.  At  common  law,  as  be- 


tween husband  and  wife,  even  though  one  were  in  the 


Minn.  418,  93  N.  W.  605;  Grimes 
V.  Bryan,  149  N.  C.  248,  63  S.  E. 
106.  Contra,  Boykin  v.  Smith,  65 
Ala.  294. 

77.  O'Boyle  v.  McHugh,  66 
Minn.  390,  69  N.  W.  37;  CoUins 
V.  Colleran,  86  Minn.  199,  90  N. 
W.  390;  Roberts  v.  Roberts,  2  Mc- 
Cord  L.  (S.  Car.)  268,  13  Am.  Dec. 
721. 

78.  See  Silva  v.  Winpenny,  136 
Mass.  253;  Gifford  v.  Gifford,  100 
Mich.  258,  58  N.  W.  1000;  AHen 
V.  Allen,  58  Wis.  202.  210,  16  N. 
W.  610;  Dunham  v.  Townshend, 
118  N.  Y.  281,  23  N.  E.  367;  10 
Harv.  Law  Rev.  376;  24  Harv. 
Law  Rev.   495. 

79.  McCarty  v.  Colton,  134 
Iowa.  658,  108  N.  W.  217;  Fox 
v.  Windes,  127  Mo.  502,  48  Am. 
St.  Rep.  648,  30  S.  W.  323;  Clark 
V.  Lane,  2  N.  J.  L.  417;  Livings- 
ton V.  Pendergast,  34  N.  H.  544; 
Scarboro    v.    Scarboro,    122    N.    C. 


234,    29    S.    E.    352;     Douglas    v. 
Irvine,  126  Pa.  643,  17  Atl.  802. 

80.  White  v.  White,  52  Ark. 
188,  12  S.  W.  201;  Reed  v.  Smith, 
125  Cal.  491,  58  Pac.  139;  TuUy 
V.  Tully,  137  Oal.  60,  69  Pac.  700; 
Parker  v.  Salmons,  101  Ga.  160, 
65  Am.  St.  Rep.  29L  28  S.  E.  681; 
Horn  V.  Metzger,  234  111.  240,  84 
N.  E.  893;  Kirby  v.  Kirby,  236 
111.  255,  86  N.  E.  259;  Nugent  v. 
Peterman,  137  Mich.  646,  100  N. 
W.  895;  Allen  v.  Allen,  58  Wis. 
202,   16   N.  W.   610. 

81.  McQueen  v.  Fletcher,  77 
Ga.  444;  Wilson  v.  Sutton,— Ky. 
— ,  154  S.  W.  394;  Carpenter  v. 
Carpenter,  126  Mich.  217,  85  N.  W. 
576;  Livingston  v.  Pendergast,  34 
N.  H.  544;  Lawrence  v.  Lawrence, 
14  Ore.  77,  12  Pac.  307;  Cook  v. 
Nicholas,  4  Watts  &  S.  (Pa.)  331; 
Hall  &  Mathias,  4  Watts  &  S. 
(Pa.)  331;  Clark  v.  Trindle,  52 
Pa.    St.    492;    Searle    v.    Laraway, 


2U26 


Eeal  Pkoperty, 


[§  513 


exclusive  occupation  of  the  other's  land,  the  statute 
could  not  run,  since  they  were  regarded  as  constituting 
but  one  person.^-  But  in  so  far  as  this  common-law  doc- 
trine has  been  altered  by  modern  legislation,  there 
seems  to  be  no  reason  why  the  statute  should  not  run 
in  favor  of  one  as  against  the  other,  provided  the 
former  is  in  exclusive  possession  of  the  other's  land, 
and  his  possession  is  hostile  or  adverse  to  the  other.^^ 
And  there  is  obviously,  after  a  divorce  has  taken  place, 
no  such  identity  of  persons  as  can  prevent  the  run- 
ning  of   the    statute. ^^ 

When  the  husband  and  wife  live  together  on  land 
belonging  to  the  one  or  the  other  of  them,  the  pos- 
session is  ordinarily  in  the  one  who  has  the  legal 
title,  and  the  other  is  in  the  position  of  a  licensee,  and 
the  statute  will  consequently  not  run  in  favor  of  the 
latter    as    against    the    former.^^      But    there    are    oc- 


27  R.  I.  557,  65  Atl.  269;  Thomas 
V.  Thomas,  2  Kay  &  J.  79;  How- 
ard V.  Shrewsbury,  L.  R.  17  Eq. 
397;  In  re  Hobbs,  36  Ch.  Div. 
553. 

82.  See  Bell  v.  Bell,  37  Ala. 
536;  Skinner  v.  Hale.  76  Conn. 
223;  McArthur  v.  Egleson,  3  Ont. 
Appr  577.  In  Cervantes  v.  Cer- 
vantes,— Tex.  Civ.  App. — ,  76  S. 
W.  790,  it  was  decided  that  the 
wife's  possession  was,  under  the 
community  system  there  in  force, 
the  possession  of  the  husband,  so 
that  she  could  not  acquire  his 
property  -by  adverse  possession, 
even    though    deserted    by   him. 

83.  See  Trammel  v.  Craddock. 
93  Ala.  450,  9  So.  815;  Lide  v. 
Park,  135  Ala.  131,  93  Am.  St. 
Rep.  17,  33  So.  175;  Evans  v. 
Russ.  131  Ark.  335,  198  S.  W. 
518;  Union  Oil  Co.  v.  Stewart,  158 
Cal.  149.  110  Pac.  313;  Warr  v. 
Honeck,  8  Utah,  61,  29  Pac.  1117. 


84.  Ross  v.  McCann,  145  Mo. 
271,  46  S.  W.  955;  Ferring  v. 
Fleischman— (Tenn.)— ,  39  S.  W. 
19;  Kelly  v.  Kelly.  —  Tenn.  — , 
58  S.  W.  870.  See  House  v.  Wil- 
liams, 16  Tex.  Civ.  App.  122,  40 
S.    W.    414. 

85.  Gafford  v.  Strauss,  89  Ala. 
283  7,  L.  R  A.  568,  18  Am.  St. 
Rep.  Ill,  7  So.  248;  Stiff  v.  Cobb, 
126  Ala.  381,  85  Am.  St.  Rep.  38, 
28  So.  402;  Tumlin  v.  Tumlin, 
195  Ala.  457,  70  So.  254;  Mauldin 
V.  Cox,  67  Cal.  387,  391,  7  Pac. 
264;  Bias  v.  Reed,  169  Cal.  387, 
145  Pac.  516;  Green  v.  Jones,  169 
Ky.  146,  183  S.  "W.  488;  Claughton 
V.  Claughton,  70  Miss.  384,  12  So. 
340;  Boynton  v.  Miller,  144  Mo. 
681,  46  S.  W.  754;  Hovorka  v. 
Havlik.  68  Neb.  14,  110  Am.  St. 
Rep.  387,  93  N.  W.  990;  Springer 
V.  Young,  14  Ore.  280,  12  Pac. 
400;  Reagle  v.  Reagle.  179  Pa.  St. 
89,    36    Atl.    191;    Berry    v.   Wied- 


§  51o]  Advek^e   Possession.  2027 

casio'nal  decisions  to  the  apparent  effect  that  if  the 
wife  has  color  of  title  to  the  land,  the  statute  will  run 
in  her  favor  as  against  the  husband,  he  not  asserting 
his  title.^'^ 

In  so  far  as  the  legal  identit\*  of  husband  and 
wife  is  still  recognized,  it  does  not  seem  that  the 
mere  fact  of  the  husband's  wrongful  abandonment  of 
the  ^^'ife  should  enable  the  wife  to  acquire  title  to  his 
land  by  the  statute  of  limitations,"'"  but  there  are 
occasional  suggestions,  judicial  and  extra  judicial,  that 
the  fact  of  desertion  may  have  an  effect  in  this  regard,^** 
apart  from  that  of  giving  to  the  wife  the  possession 
which,  before  the  departure  of  the  husband,  was  pre- 
sumably in  him  as  having  the  legal  title. 

man,    40    W.    Va.    36,    52    Am.    St.  87.     See    McArthur   v.    Egleson, 

Rep.  866,  20  S.  E.  817.  3    Ont.    App.    577;     Cervantes    v. 

86.     Hartman     v.     Nettles,     64  Cervantes — (.Tex.  Civ.  App.) — ,  76 

Miss.    495,    8    So.    234;    Massey    v.  S.  W.  790. 

Rimmer,     69     Miss.     667,    13     So.  88.     Union   Oil    Co.   v.    Stewart, 

832;   Mcpherson  v.  McPherson,  75  158  Cal.  149,  110  Pac.  313;    Warr 

Neb.   830,   121    Am.    St.   Rep.    835,  v.    Honeck,    8    Utah,    61,    29    Pac. 

106  N.  W.  991;    Potter  v.  Adams,  1117,    (invalid  divorce).  Editorial 

125  Mo.  118,  46  Am.  St.  Rep.  478,  notes,     10     Columbia     Law     Rev. 

28  S.  W.  490  isemble).  See  Mattes  775;  24  Harvard  Law  Rev.  316. 
V.  Hall,  21  Cal.  352,  132  Pac.  295. 


CHAPTER    XXIV. 

PRESCRIPTION  FOR   INCORPOREAL  THINGS. 

§  514.  General  considerations. 

51.5.  Restrictions  on  application  of  the  doctrine. 

516.  Who  may  acquire  right  by  prescription. 

517.  AVhat  rights  may  be  acquired  by  prescription. 

518.  Actual  user  necessary. 

519.  Adverse  character  of  user. 

520.  Necessity  of  claim  of  right. 

521.  Necessity  of  notice  to  landowner. 

522.  Necessity  of  exclusive  user. 

523.  Necessity  of  peaceable  user. 

524.  Necessity  of  right  of  action. 

525.  Continuity  of  user. 

526.  Cessation  of  adverse  character. 

527.  Interruption  by  landowner. 

528.  Protests  and  interference  by  landowner. 

529.  Tacking. 

530.  Personal  disabilities. 

531.  Nature  and  extent  of  prescriptive  right. 

532.  Reciprocal   prescriptive    rights. 

533.  Prescription  for  highways. 

(a)  General   considerations. 

(b)  User  by  public  necessary. 

(c)  Adverseness  of  user. 

(d)  Necessity  of  claim  of  right. 

(e)  Necessity  of  notice  of  user. 

(f)  Continuity  of  user. 

(g)  Width  of  highway. 

§  514.  General  considerations.  Though  the  Statute 
of  Westminster  I.,  establishing  a  date  back  of  which 
the  pleader  could  not  go/  applied  to  actions  for  the 
recovery  of  the  land  only,  and  not  to  those  for  the 
recovery  of  incorporeal  tilings,  "the  judges,  with  that 
assumption  of  legislative  authority  which  has  at  times 

1.     Ante,   §   500. 

(2028) 


<§  514]  Peescription.  2029 

characterized  our  judicature,  proceeded  to  apply  the 
rule  as  to  prescription  established  b}'  the  statute  to  in- 
corporeal hereditaments,  and,  among  others,  to  ease- 
ments. "^  Subsequently,  when,  by  the  Statute  of  82 
Hen.  VIII.  c.  2,  and  21  Jac.  I.  c.  16,  the  time  for  bring- 
ing a  writ  of  right  or  a  possessory  action  to  recover 
land  was  reduced  to  sixty  and  twenty  years,  respec- 
tiveh%  it  might  have  been  expected  that  the  judges 
would  as  in  the  case  of  the  earlier  act,  apply  the  anal- 
og}' of  these  acts  to  incorporeal  things.  This,  however, 
it  seems,  they  did  not  do,"^  but  they  effected  the  same  end 
by  the  adoption  of  the  fiction  that  a  grant  of  the  right 
would  be  presumed  if  it  had  been  exercised  for  a  period 
of  twenty  years ,  this  doctrine  of  a  lost  grant  being 
in  reality  prescription,  under  another  name,  shortened 
in  analogy  to  the  period  of  limitation  fixed  by  the 
Statute  of  James.*  In  the  case  of  prescrii)tion,  as  it 
existed  by  analogy  to  the  early  statute,  the  exercise  of 
the  right  from  the  date  named  conferred  an  unim- 
peachable title.  Whether  this  presumption  of  a  lost 
grant,  on  the  other  hand,  had  a  like  effect,  that  is, 
whether  it  was  a  conclusive  presumption,  or  could  be 
rebutted  by  evidence  that  there  was  no  such  grant,  is 
a  question  on  which  there  was  great  doubt.  In  prac- 
tice it  seems  to  have  been  the  custom  for  the  court  to 
instruct  the  jury  to  find  the  existence  of  such  a  grant, 
even  though  there  was  evidence  to  show  that  it  did  not 
exist.  Eventually  the  Statute  of  2  &  3  Wm.  IV.  c.  71 
(A.    D.    18o2),    termed    the    ''Prescription    Act,"    was 

2.  Cockburn,    C.    J.,    in    Angus  determining    the    period    of    "im- 
V.   Dalton,  3   Q.   B.   Div.   So,   104.  memorial    user"    for    the    purpose 

3.  Gale,  Easements  (8th  Ed.),  of  prescription,  see  Yard  v.  P'ord, 
191,  citing  statements  to  that  2  Wms.  Saund.  175,  note;  Gale, 
effect  in  Angus  v.  Dalton,  4  Q.  B.  Easements,  190;  Coolidge  v. 
Div.  at  pages  170,  199,  per  Learned,  8  Pick.  (Mass.)  504. 
Thesiger  and  Brett,  L.  J.,  and  in  4.  Gale,  Easements,  192.  See 
6  Aipp.  Gas.  at  page  788,  per  Fry,  Coolidge  v.  Learned,  8  Pick. 
J.      But    that    the    periods    fixed  (Mass.)    504. 

by   these  statutes   was  applied   in 
2  R.  P.— 53 


2030 


Real  Property. 


[§  514 


passed,  "with  the  view,"  it  is  said,  "of  putting  an  end 
to  the  scandal  on  the  administration  of  justice  which 
arose  from  thus  forcing  the  consciences  of  juries."^ 

In  this  country  the  courts  have  usually  followed  the 
analogy  of  the  statute  of  limitations  applicable  to 
actions  for  the  recovery  of  land,  with  the  effect  that 
one  who  has  exercised  as  of  right  a  user  in  another's 
land  for  the  statutory  period,  is  regarded  as  having  a 
right  of  user  to  that  extent.^  And  while,  quite  fre- 
quently, it  is  said  that  from  such  user  a  grant  will 
be  presumed,  the  presumption  is  in  effect  a  positive 
rule  of  law,  and  evidence  that  no  grant  was  made  would 
be  immaterial/  In  other  words,  it  is  conclusively  pre- 
sumed from  the  landowner's  acquiescence  for  the  statu 
tory  period  in  the  other's  user  of  his  land,  he  having 
the  right  and  power  to  stop  such  user,  that  the  user 
is  a  rightful  user.^ 


5.  Cockburn,  C.  J.,  in  Angus 
V.  Dalton,  3  Q.  B.  105.  And  see 
Bright  V.  Walker,  1  Cromp.  Mees. 
&  Ros.  211,  per  Parke,  B.,  and 
editorial  note  29  Harv.  Law  Rev. 
88. 

6.  Legg  V.  Horn,  45  Conn. 
409;  Coolidge  v.  Learned,  8  Pick. 
(Mass.)  504;  Melvin  v.  Whiting, 
10  Pick.  (Mass.)  295;  Mueller  v. 
Fruen,  3  Minn.  273;  Carlisle  v. 
Cooper,  19  N.  J.  Eq.  256;  Cobb 
V.  Davenport,  32  N.  J.  L.  369; 
Corning  v.  Gould,  16  Wend.  (N. 
Y.)  531;  Nicholls  v.  Wentworth, 
100  N.  Y.  455,  3  N.  E.  482;  Krier's 
Private   Road,   73   Pa.    St.   109. 

7.  Smith  V.  Hawkins,  110  Cal. 
122,  42  Pac.  453;  Coolidge  v. 
Learned,  8  Pick.  (Mass.)  504; 
Wallace  v.  Fletcher,  30  N.  H. 
434;  L6hig;h  Valley  R.  Co.  v. 
McFarlan,  43  N.  J.  L.  605;  Ward 
v.  Warren,  82  N.  Y.  265;  Pavey 
V.  Vance,   56   Ohio   St.   162,  46   N, 


E.  898;  Okeson  v.  Patterson,  29 
Pa.  St.  22;  Carter  v.  Tinicum 
Fishing  Co.  77  Pa.  St.  310;; 
Lewis  V.  San  Antonio,  7  Tex. 
288;  Tracy  v.  Atherton,  36  Vt. 
503;  Cornett  v.  Rhudy,  80  Va. 
710;  Tyler  v.  Wilkinson,  4  Mason 
397,  Fed  Cas.  No.  14312.  There 
are  suggestions  to  the  contrary 
in  Lanier  v.  Booth,  50  Miss.  410; 
Parker  v.  Foote,  19  Wend.  (N. 
Y.)    309. 

8.  See  Sturges  v.  Bridgman, 
11  Ch.  D.  852,  863;  Dalton  v. 
Angus,  6  App.  Cas.  740,  773,  803, 
823;  Warren  v.  Jacksonville,  15 
111.  236;  Gayetty  v.  Bethune,  14 
Mass.  49,  7  Am.  Dec.  188;  Cobb 
V.  Davenport,  32  N.  J.  L.  369; 
Wallace  v.  Fletcher,  30  N.  H. 
434;  Jones  v.  Crow,  32  Pa.  St. 
398;  Lamb  v.  Crosland,  4  Rich. 
Law  (S.  C.)  536;  Dodge  v.  Stacy, 
39   Vt.   559. 


§  515] 


Pkescription. 


2031 


§  515.     Restrictions  on  application  of  the  doctrine. 

It  is  generally  recognized  that  no  right  can  be  ac- 
quired by  prescription  to  maintain  a  public  nuisance.^ 
So  it  has  been  decided  that  there  can  be  no  prescriptive 
right  to  maintain  an  obstruction  in  the  highwaj^^"  or 
to  poUute  a  stream  to  the  detriment  of  the  public."  In 
a  number  of  cases,  however,  it  has  been  decided  that  one 
may  acquire  by  prescription  a  right  to  use  another's 
land  although  such  use  is  incidental  to  the  maintenance 
of  a  public  nuisance.^2  For  instance,  a  prescriptive 
right  to  overflow  land  has  been  recognized,  although  the 
overflow  was  effected  by  the  maintenance  of  a  dam  in 


9.  Kissel  V.  Lewis,  156  Ind. 
233,  59  N.  E.  478;  Dygert  v. 
Schenck,  23  Wend.  (N.  Y.)  446, 
35  Am.  Dec.  576;  North  Point 
Consol.  Irrigation  Co.  v.  Utah 
&  S.  L.  Canal  Co.,  16  Utah,  246, 
40  L.  R.  A.  851,  67  Am.  St.  Rep. 
607,  52  Pac.  168.  See  cases  cited 
in  note  to  Leahane  v.  Cochrane. 
53   L.   R.  A.   891. 

10.  Pierson  v.  Elgar,  4  Cranch 
(U.  S.)  454;  Harn  v.  Common 
Council  of  Dadeville,  100  Ala. 
199,  14  So.  9;  Blackman  v. 
Mauldin,  164  Ala.  337,  27  L.  R. 
A.  (N.  S.)  670,  51  So.  23  (navi- 
gable stream);  Fresno  v.  Fresno 
Canal  &  Irrigation  Co.,  98  Cal. 
179,  32  Pac.  943;  Wolfe  v.  Town 
of  Sullivan,  133  Ind.  331,  32  N. 
E.  1017;  Lewiston  v.  Booth,  3 
Idaho,  692,  34  Pac.  809;  Hynea 
V.  Brewer,  194  Mass.  435,  9  L. 
R.  A.  (N.  S.)  598,  80  N.  E.  503; 
Veazie  v.  Dwinel,  50  Me.  479 
(floatable  stream)  ;  Morton  v. 
Moore,  15  Gray  (Mass.)  573; 
New  Salem  v.  Eagle  Mill  Co., 
138  Mass.  8;  Burbank  v.  Fay, 
65  N.  Y.  57;  Dead  wood  v.  Hursh, 
30    S.    D.    450,    138    N.    W.    1122. 


Contra,  semble.  Moon  v.  Mills, 
119  Mich.  298,  75  Am.  St.  Rep. 
390,  77  N.  W.  926;  Chase  v.  Mid- 
dleton,  123  Mich.  647,  82  N.  W. 
612. 

11.  Bowen  v.  Wendt,  103  Cal 
236,  37  Pac.  149;  Piatt  Bros.  v. 
Waterbury,  72  Conn.  531,  48  L.  R. 
A.  691,  77  Am.  St.  Rep.  335,  45 
Atl.  154;  Woodyear  v.  Schaefer, 
57  Md.  1,  40  Am.  Rep.  419;  Mar- 
tin V.  Gleason,  139  Mass.  183, 
29  N.  E.  664;  Attorney  General 
V.  Grand  Rapids,  175  Mich.  503, 
50  L.  R.  A.  (N.  S.)  473,  Ann. 
Cas.  1915A  968,  141  N.  W.  890; 
Shelby  v.  Cleveland  Mill  &  Power 
Co.,  155  N.  C.  196,  71  S.  E.  218; 
Owens  V.  Lancaster,  182  Pa.  257, 
37  Atl.  858;  North  Point  Consol. 
Irrigation  Co.  v.  Utah  &  S.  L. 
Canal,  16  Utah,  246,  40  L.  R.  A. 
851,  67  Am.  St.  Rep.  607,  52  Pac. 
168. 

12.  See  Hudson  v.  Dailey,  156 
Cal.  617,  105  Pac.  748;  Felton  v. 
Wedthoff,  185  Mich.  72,  151  N. 
W.  727;  Charnley  v.  Shawano 
Water  Power  &  River  Improve- 
ment Co.,  109  Wis.  563.  G:i  L.  R. 
A.  895,  85  N.  W.  507. 


2032  Eeal  Property.  [§  515 

a  highway,  a  public  nuisance/^  and  even  though  the 
collection  of  such  a  body  of  stagnant  water  constituted 
a  public  nuisance  by  reason  of  exhalations  therefrom.^^ 
But  in  so  far  as  the  owner  of  the  land  suffers  a  special 
damage  in  such  case  from  the  condition  which  gives  to 
the  structure  the  character  of  a  public  nuisance,  he 
does  not,  by  lapse  of  time,  lose  his  right  to  immunity 
from  the  nuisance.  So  while  the  owner  of  the  flooded 
land  may,  by  lapse  of  time,  lose  the  right  to  object 
to  the  flooding  of  the  land,  he  does  not  lose  the  right, 
as  one  of  the  jDublic,  to  object  to  the  unhealthy  exhala- 
tions caused  thereby.^^  If  what  would  otherwise  be  a 
public  nuisance  is  legalized  by  the  public  authorities 
it  loses  its  character  of  a  public  nuisance,  and  conse- 
quently prescription  might,  it  would  seem,  run  as 
against  an  individual  as  regards  its  maintenance,  to  the 
same  extent  as  in  the  case  of  any  private  nuisance.^" 
In  accordance  with  the  maxim  nullum  tempus  oc- 
currit  regi,  a  right  of  user  cannot  be  acquired  by 
prescription  in  land  belonging  to  the  United  States, ^^ 
in  the  absence  at  least  of  an  act  of  Congress  establish- 
ing a  limitation  period  as  against  the  government. 
That  a  right  of  user  may  be  acquired  by  prescription 
against   the    state,   if   the   statute   of   limitation   is   ex- 

13.  Borden  v.  Vincent,  24  Pick.  Wis.  417,  122  N.  W.  1062.  See 
(Mass.)  301;  Lawrence  v.  In-  Comm.  v.  Upton,  6  Gray  (Mass.) 
habitants    of    Fairhaven,    5    Gray      473. 

(Mass.)    110;    Inhabitants  of  New  15.     See    cases    last    cited. 

Salem  v.  Eagle  Mill  Co.,  138  Mass.  16.     See    editorial    note    9    Col- 

8;  Perley  v.  Hilton,  55  N.  H.  444;  umbia    Law    Rev.    183;    Tiewis    v. 

Charnley  v.  Shawano  Water  Pow-  New   York    &    H.    R.    Co.,    162    N. 

er  &  River  Improvement  Co.  109  Y.  202  at  223,  56  N.  E.  540. 
Wis.   563,   53   L.  R.   A.   895,   85   N.  17.     Union    Mill    &    Milling    Co. 

W.    507.  V.   Ferris,   Fed   Cas.   No.    14371,   2 

14,  Mills  V.  Hall,  9  Wend.  (N.  Sawy.  176;  Smith  v.  Hawkins,  tlO 
Y.)  315,  24  Am.  Dec.  160;  Rhodes  Cal.  122,  42  Pac.  453;  Lanique  v. 
V.  Whitehead,  27  Tex.  304,  84  Am.  Morrison,  29  Oal.  App.  136,  154 
Dec.  631;  Green  Bay  &.  Mississippi  Pac.    881. 

Co.    V.     Teluah     Paper     Co.,     140 


"^  516]  Peescription.  2033 

pressly  made  operative  as  against  the  state,  has  been 
occasionally  recogiiized.^^ 

Since  the  doctrine  of  prescription  is  based  in 
theory  upon  the  presumption  of  a  grant,  it  can  apply 
only  when  an  actual  grant  would  have  been  valid.^^ 
Consequently,  it  has  been  held,  a  right  to  lateral 
support  from  the  bed  of  a  street  cannot  be  acquired 
by  prescription,  since  the  municipality  has  no  power  to 
grant  such  a  right,^^  and  a  right  to  appropriate  water 
from  a  canal  cannot  be  based  on  prescription  when  it 
could  not  have  been  the  subject  of  a  grant.^^ 

§  516.     Who    may   acquire    right   by   prescription. 

The  common  law  rule  is  that  a  prescriptive  right  appur- 
tenant to  land  can  be  asserted  only  in  favor  of  one 
who  has  an  estate  in  fee  simple  in  the  land,  for  the 
benefit  of  which  the  user  is  made,  and  that  if  a  tenant 
for  life  or  years  undertakes  to  assert  such  a  right, 
he  must  assert  it  as  having  been  acquired  by  the  ten- 
ant in  fee  simple,  under  whom  he  claims.--  The  right 
is  appurtenant  to  the  land  rather  than  to  any  particular 
estate  in  the  land.  An  easement  in  gross  acquired 
by  prescription,  on  the  other  hand,  belongs  to  the  per- 
is. Nichols  V.  Boston,  98  Miss.  Rogue  River  Packing  Co.,  51  Ore. 
39,  93  Am.  Dec.  732;  Attorney  237,  31  L.  R.  A.  (N.  S.)  396.  131 
General  v.  Revere  Copper  Co.,  Am.  St.  Rep.  732,  83  Pac.  391,  92 
152  Mass.  444,  9  L.  R.  A.  510.  Pac.  1065,  96  Pac.  865;  Goodman 
25  N.  E.  605;  People  v.  Page.  39  v.  Saltash  Corp.  7  App.  Cas.  633; 
N.  Y.  App.  Div.  110,  56  N.  Y.  Neaverson  v.  Peterborough  Rural 
Supp.  834,  58  N.  Y.  Supp.  239  Council  (1902)  1  Ch.  557. 
(semble).     Compare  Kirschner  v.  20.     Quincy    v.     Jones,    7(1    111. 

Western  &  A.  R.  Co.,  67  Ga.  760.       231,  20  Am.  Rep.  243. 

19.     Woodworth  v.  Raymond,  51  21.     Burbank   v.    Fay,   65   N.  Y. 

Conn.    70;     Attorney    General    v.      57;    Rockdale    Canal    Co.    v.    Rad- 
Revere  Copper  Co.,  152  Mass.  444,      cliffe,    18    Q.    B.    287. 
9    L.    R.    A.    510,    25    N.    K.    005;  22.     2  Blackst.  Comm.  2*15;  God- 

Brookline  v.  Mackintosh,  133  dard,  Easements  (6th  Ed.)  218; 
Mass.  215,  225  (pollution  of  Perley  v.  Hilton,  55  N.  II.  444; 
stream);  Felton  v.  Simpson,  11  Smith  v.  Kinard,  2  Hill  L.  (S. 
Tred   L.    (33   N.   C.)    84;    Hume  v.      C.)    642.    note.      See    Wheaton    v. 


2034:  Real  'Peopekty.  [§  517 

son    who    exercised    the    user   during   the    prescriptive 
period,  and  is  ordinarily  purely  personal  to  him.-^^ 

That  a  municipality  may  acquire  by  prescription 
the  right  to  use  the  land  of  an  individual  for  a  munic- 
ipal purpose  has  been  recognized,^^  but  the  user  of 
the  land  for  the  prescriptive  period  by  individual  in- 
habitants of  the  municipality  is  insufficient  to  create 
an  easement  in  favor  of  the  municipality.^* 

The  public  cannot,  strictly  speaking,  acquire  rights 
by  prescription.  Since  a  grant  cannot  be  made  to  the 
public,  there  is  no  room  for  the  presumption  of  a  grant 
in  such  case.  The  analogy  of  prescription  has  however 
been  freely  applied  in  the  case  of  highways,  on  the 
theory  that  an  adverse  user  of  private  land  by  the 
public  for  the  prescriptive  period  gives  rise  to  a  pre- 
sumption that  the  land  was  dedicated  for  a  highway, 
and  the  term  prescription  is  almost  invariably  used  in 
that  connection.  The  matter  of  the  establishment  of 
a  highway  by  reason  of  adverse  user  on  the  part  of 
the  public  is  discussed  at  the  end  of  this  chapter. 

§  517.  What  rights  may  be  acquired  by  prescrip- 
tion. A  right  of  way  over  another's  land  may  be  ac- 
quired by  prescription,-^  and  the  doctrine  is  perhaps 
more  frequently  applied  in  this  connection  than  in  any 
other.  That  there  were,  during  the  prescriptive  period, 
gates  across  the  way,  does  not  preclude  the  acquisition 

Maple    &    Co.,    (1893)     3    Ch.    48,  Pick.      (Mass.)      191;      Green     v. 

63;    Ivimey    v.    Stocker,    L.    R.    1  Chelsea,     24     Pick.     (Mass.)     71; 

Ch.    App.    396;    Fear    v.    Morgan,  Hill  v.  Lord,  48  Me.  83. 
(1906)    2    Ch.    406.  25.     See,  e.  g.  Cheney  v.  C'Bri- 

22a.     Ante,  §   350.  en,     69     Cal.     199,    10    Pac.    479; 

23.  Gordon  v.  Taunton,  126  Everedge  v.  Alexander,  75  Ga. 
Mass.  349;  Deerfield  v.  Con-  858;  Talbott  v.  Thorn,  91  Ky.  417, 
necticut  R.  R.,  144  Mass.  325,  11  16  S.  W.  88;  Jones  v.  Percival. 
N.  E.  105;  Smith  v.  Sedalia,  152  5  Pick.  (Mass.)  485,  16  Am.  Dec. 
Mo.  283,  48  L.  R.  A.  711,  53  S.  415;  Garnett  v.  Slater.  56  Mo. 
^^     907.  App.  207;   Arnold  v.  Cornman,  50 

24.  Coram  v.  Newbury.  2  Pick.  Pa.  St.   361. 
(Mass.)     59;     Sale    v.    Pratt,    19 


§  517] 


Pkescription. 


2035 


of  the  right,-*'   though  it  may  be  regarded  as  tending 
to  show  that  the  user  was  permissive.^' 

The  right  to  appropriate  the  water  of  a  stream  in 
excess  of  one's  natural  right  may  be  acquired  by  pre- 
scription as  against  lower  riparian  proprietors  -*  The 
right  to  dam  or  obstruct  the  water  of  a  stream  so  as  to 
flood  the  land  of  another  may  also  be  thus  acquired,^^ 
as  may  the  right  to  pollute  the  water,"^"  or  to  control 
or  change  the  flow.^^  One  may  also  acquire  by  pre- 
scription   the    right   to   maintain   an    aqueduct,-^-    or   a 


26.  Johnson  v.  Stayton,  5  Harr. 
(Del.)  448;  Smith  v.  Roath,  238 
111.  247,  87  N.  E.  414;  Moll  v. 
Hagerbaumer,  98  Neb.  555,  153 
N.  W.  560;  Demuth  v.  Amweg, 
90   Pa.    St.    181. 

27.  Post,   §    519,   note   80. 

28.  TVler  v.  Wilkinson,  4  Ma- 
son, 397,  Fed.,  Cas.  No.  14312; 
Coonradt  v.  HiU,  79  Cal.  587,  21 
Pac.  1099;  Arroyo  Ditch  &  Water 
Co.  V.  Baldwin,  155  Cal.  280, 
100  Pac.  874:  Kuhlman  v.  Hechl, 
77  111.  570;  Fankboner  ".  Coid^r 
127  Ind.  164,  26  N.  E.  766;  Barnes 
V.  Haynes,  13  Gray  (Mass.)  188, 
74  Am.  Dec.  629;  Whitney  v. 
Wheeler  Cotton-Mills,  151  Mas* 
396,  7  L.  R.  A.  613,  24  N.  E. 
774;  Smith  v.  Putnam,  62  N.  H. 
369;  Shreve  v.  Voorhees,  3  N.  J. 
Eq.  25;  Krier's  Private  Road,  73 
Pa.  St.  109;  Horn  v.  MiUer,  142 
Pa.  St.  557,  21  Atl.  994;  Olney  v. 
Fenner,  2  R.  I.  211,  57  Am.  Dec. 
711;  Ferrell  v.  Ferrell,  1  Baxt. 
(Tenn.)  329;  Boyd  v.  Woolwine, 
40  W.  Va.   282.  21  S.  E.  1020. 

29.  Atlanta  &  B.  Air  Line  Ry 
V.  Wood,  160  Ala.  657.  49  So. 
426;  Vail  v.  Mix.  74  111.  127; 
Wallace  v.  Winfield,  96  Kan.  A5, 
149  Pac.  693;  Williams  v  Nel'-on, 
23  Pick.    (Mass.)    141;    Turner  v. 


Hart,  71  Mich.  128,  15  Am.  St. 
Rep.  243,  38  N.  W.  890;  Mueller 
V.  Fruen,  36  Minn.  273,  30  N.  W. 
886;  Alcorn  v.  Sadler,  71  Miss. 
634,  42  Am.  St.  Rep.  484,  14  So. 
444;  Hammond  v.  Zehner,  21  N. 
Y.  118;  Emery  v.  Raleigh  &  G. 
R.  Co.,  102  N.  C.  209,  11  Am.  St. 
Rep.  727,  9  S.  E.  139;  McGeorge 
V  Hoffman,  133  Pa.  St.  381,  19 
Atl.  413;  Shearer  v.  Hutterische 
Bruder  Gemeinde,  28  S.  D.  509, 
134  N.  W.  63;  Haas  v.  Choussard, 
17  Tex.  588;  Perrin  v.  Garfield,  37 
Vt.  304. 

30.  Crossley  v.  Lightowler.  2 
Ch.  App.  478;  Crosby  v.  Bessey, 
49  Me.  539;  Holsman  v.  Boiling 
Spring  Bleaching  Co.,  14  N.  J.  Eq. 
335;  Gladfelter  v.  Walker,  40  Md. 
1;  Jones  v.  Crow,  32  Pa.  St. 
398. 

31.  Brace  v.  Yale,  10  Allen 
(Mass.)  441;  Dyer  v.  Cranston 
Print  Works  Co.,  22  R.  I.  506, 
48   Atl.   791. 

32.  Churchill  v  Louie.  1X5  Cal. 
608,  67  Pac.  1052;  Frederick  v. 
Dickey,  91  Cal.  358,  27  Pac.  742; 
Watkins  v.  Peck.  13  N.  H.  370; 
Coventon  v.  Seufert,  23  Ore.  548, 
32  Pac.  508;  French  Hoek  v. 
Hugo,  L.  R.  10  App.  Cas.  336. 


2036 


Eeal  Property. 


[§  517 


drain,^^  over  another's  land  and  likewise  the  right  to 
discharge   drainage   thereon.^'* 

One  may,  it  has  been  held,  acquire  by  prescription 
a  right  to  take  seaweed  from  another's  land,^^  or  a 
right  to  fish  thereon.^^  Likewise  a  prescriptive  right 
to  take  water,^"^  or  ice,^*  from  another's  land  has  been 
recognized.  A  profit  a  prendre  can,  however,  it  has 
been  said,  be  acquired  by  prescription  only  as  appur- 
tenant to  a  dominant  tenement  or,  as  it  is  technically 
expressed,  the  party  must  prescribe  in  a  que  estate.-^" 

Among  other  prescriptive  rights  which  have  been 
judicially  recognized  are  the  right  to  have  a  division 
fence  maintained  by  the  owner  of  adjoining  land,^''  the 


33.  Alderman  v.  New  Haven, 
81  Conn.  137,  18  L.  R.  A.  (N.  S) 
74,  70  Atl.  626;  Earl  v.  De  Hart, 
12  N.  J.  Eq.  280,  72  Am.  Dec. 
395;  Beasley  v.  Engstrom,  31 
Idaho,  14,  168  Pac.  1145;  Pyott 
V.  State,  170  Ind.  118,  83  N.  E. 
737;  Pascal  v.  Hynes,  170  Iowa, 
121,  152  N.  W.  26;  White  v. 
Chapin,  12  Allen  (Mass.)  516; 
Shaughnessey  v.  Leary,  162  Mass. 
108,  38  N.  E.  197;  McCracken  v. 
MacNeal,  169  Mich.  414,  135  N. 
W.  461;  Ramsdale  v.  Foote,  55 
Wis.  557,  13  N.  W.  557;  Wilkins 
V.  Nicolai,  99  Wis.  178,  74  N. 
W.  103. 

34.  Cotton  V.  Pocasset  Mfg. 
Co.,  13  Mete.  (Mass.)  429;  Chapel 
V.  Smith.  80  Mich.  100,  45  N. 
W.  69;  Seigmund  v.  Tyner,  52 
Ind.  App.  581,  101  N.  E.  20; 
Peacock  v.  Stinchcomb,  189  Mich. 
301,  155  N.  W.  349. 

35.  HiH  V.  Lord,  48  Me.  83. 

36.  Turner  v.  Hebron,  61  Conn. 
175,  14  L.  R.  A.  386,  22  Atl.  951; 
Melvin  v.  Whiting,  10  Pick-. 
(Mass.)  295,  20  Am.  Dec.  524,  IS 
Pick.     (Mass.)    188;    McFarlin    v. 


Essex  Co.,  10  Cush.  (Mass.)  304; 
Cobb  V.  Davenport,  32  N.  J.  L. 
369.  Compare  Tinicum  Fishing 
Co.  V.  Carter,  61  Pa.  St.  21. 

37.  Rollins  v.  Blackden,  112 
Me.  459,  Ann.  Cas.  1917A  875, 
92  Atl.  521;  Kennedy  v.  Niles 
Water  Supply  Co.,  173  Mich.  474, 
43  L.  R.  A.  (N.  S.)  836,  139  N. 
W.  241;  Fraser  v.  Nerney,  89 
Vt.  257,  95  Atl.  501;  Mason  v. 
Yearwood,  58  Wash.  276,  30  L. 
R.  A.  (N.  S.)  1158,  108  Pac.  608. 
There  may  be  a  prescriptive  right 
to  take  water  from  another's 
aqueduct.  Cole  v.  Bradbury,  86 
Me.  380,  29  Atl.  1097;  Kearney 
v.  Westchester,  199  Pa.  392,  49 
Atl.  227. 

38.  Hoag  V.  Place,  93  Mich. 
450,  18  L.  R.  A.  39,  53  N.  W.  617; 
Hinckel  v.  Stevens,  35  N.  Y.  App. 
Div.   5,   54   N.   Y.   Supp.   457. 

39.  Grimstead  v.  Marlowe,  4 
Term  Rep.  717;  Merwin  v.  Wheel- 
er, 41  Conn.  14;  Beach  v.  Morgan, 
67  N.  H.  529,  68  Am.  St.  Rep. 
692.  41  Atl.  349;  Washburn,  Ease- 
ments   (4th    Ed.)    18. 

40.  Castner    v.    Riegel,    54    N- 


§  517]  Pkescription.  2037 

right  to  conduct  on  one's  land  a  business  which  pollutes 
the  atmosphere,  to  the  injury  of  the  land  adjoining/ ^ 
the  right  to  extend  eaves  of  a  roof,  or  a  cornice,  or 
other  part  of  a  building,  over  another's  land."-  the 
right  to  maintain  gates  or  other  structures  on  a  private 
way,*3  the  right  to  stand  horses  and  carriages  on  an- 
other's land,^^  the  right  to  turn  one's  horses  on  an- 
other's land  in  ploughing,^^  the  right  to  attach  a  sign 
to  another's  building,^«  the  right  to  maintain  an  air 
shaft  through  another's  property,"'"  the  right  to  use 
another's  property  for  a  ferry  landing.*^ 

There  are,  on  the  other  hand,  some  easements 
which  cannot  be  acquired  by  prescription,  owing  to  the 
fact  that  the  owmer  of  the  land  is  not  in  a  position  to 
prevent  the  exercise  of  the  user  claimed,  or  to  sue  on 
account  thereof,  and  consequently  the  fact  that  he  does 
not  do  so  is  no  evidence  of  acquiescence  on  his  part. 
On  this  principle  it  has  been  decided  that  the  appropria- 
tion of  an  excessive  quantity  of  water  from  a  water- 

J.    L.    498,    24   Atl.    484;    Bronson  has    been    decided,    can    give    no 

V.   Coffin,    108   Mass.   175,    11    Am.  right   to    have    branches    of   trees 

Rep.  335;   Adams  v.  Van  Alstyne,  overhang  adjoining  land,  in  view 

25  N.  Y.  232.  of    the    constant    change    incident 

41.  Sturges  v.  Bridgman,  11  to  growth.  Lemmon  v.  Webb, 
Ch.  Div.  852;    Dana  v.  Valentine,  (1894)    3  Ch.  1. 

5  Mete.   (Mass.)   8.  43.     Goodwin     v.     Bragaw,     87 

42.  Norwalk  Heating  &  Light-  Conn.  31,  86  Atl.  668;  Moon  v. 
ing  Co.  V.  Vernam,  75  Conn.  662,  MiUs,  119  Mich.  298,  75  Am.  St. 
96  Am.  St.  Rep.  246,  55  Atl.  168;  Rep.  390,  77  N.  W.  926;  Ailes  v. 
Cherry  v.  Stein,  11  Md.  1;  Mat-  Hallam,  69  W.  Va.  305,  71  S.  E. 
thys    V.     First     Swedish     Baptist  273. 

Church  of  Boston,  223  Mass.  544,  44.     Trauger  v.  Sassnian,  14  Pa. 

112    N.    E.    228;    Grace    Methodist  St.    514. 

Episcopal  Church  v.  Dobbins,  153  45.     .Tones    v.    Percival,   5   Pick. 

Pa.     St.     294,     34    Am.     St.     Rep  (Mass.)    485,    16   Am.    Dec.   415. 

706,  25  Atl.  1120;    Sorkin  v.  Sent-  46.     Moody  V.    Steggles,    12   Ch. 

man,    162    Pa.    St.    543.    29    Atl.  Div.  261. 

722.     So  there  may  be  a  presrrip-  47.     Bass   v.   Gregory,   25   Q.   B. 

tive  right  to  have  vessels  overlap  d.  481. 

another's    wharf.      Wellington    v.  48.     Clark    v.    White,    5    Pi:sl5, 

Cambridge,     220     Mas-i.     312,     107  353;    Bird  v.  Smith.  8  Watts  (Pa.) 

N.    E.    976.      But    prescription,    ;t  434,   34    Am.   Dec.    488. 


2038 


Real  Peopeety, 


[§  517 


course  for  the  statutory  period  by  a  lower  riparian 
proprietor  does  not  give  him  any  right  to  continue  such 
appropriation  as  against  an  upper  proprietor  who  may 
thereafter  desire  to  use  water  therefrom,  since  the  lat- 
ter had  no  means  of  preventing  such  excessive  appro- 
priation other  than  appropriating  the  water  himself.'*^ 
One  cannot  acquire  by  prescription  a  right  to  water 
percolating  from  other  land  to  his  land,  since  the  owner 
of  the  land  from  which  it  percolates  is  not  in  a  position 
to  prevent  its  percolation.'^*^  Nor  can  the  owner  of  a 
lower  tenement  acquire  by  length  of  user,  as  against 
the  upper  tenement,  a  right  to  the  flow  of  surface 
water.^^  So,  the  owner  of  the  upper  tenement,  who 
has  no  natural  right  to  have  surface  water  flow  from 
his  land  on  the  lower  tenement,  cannot  acquire  such 
right  by  the  fact  that  the  owner  of  the  latter  does  not 
prevent  such  flow  until  the  prescriptive  period  has 
elapsed,    since    such    flow    gives    no    right    of    action.'^ 


49.  Sampson  v.  Hoddinott,  1 
C.  B.  N.  S.  590;  Stockport  Water- 
works Co.  V.  Potter,  3  Hurl  &  C. 
300;  Walker  v.  Lillingston,  137 
Cal.  401,  70  Pac.  282;  Miller  & 
Lux  V.  Enterprise  Canal  &  Land 
Co.,  169  Cal.  415,  147  Pac.  567; 
Parker  v.  Hotchkiss,  25  Conn 
o21;  Thurber  v.  Martin,  2  Gray 
(Mass.)  394;  Pratt  v.  Lamson,  2 
Allen  (Mass.)  275,  288;  Crawford 
V.  Hathaway,  67  Neb.  325,  60  L. 
R.  A.  889,  108  Am.  St.  Rep.  647, 
93  N.  W.  781;  Davis  v.  Chamber- 
lain, 51  Ore.  304,  98  Pac.  154; 
Mud  Greek  Irr.  Agr.  &  Mfg.  Co. 
V.  Vivian,  74  Tex.  170,  11  S.  W. 
1078;  Lawrie  v.  Silsby,  76  Vt. 
240,  104  Am.  St.  Rep.  927,  56  Atl. 
1106.  See  note  to  93  Am.  St.  Rep. 
at  p.  717.  But  one's  ability  to 
acquire  a  prescriptive  ''ght  to 
divert  water  from  a  stream  at  a 
certain   point   is   not   affected   by 


the  fact  that  he  owns  riparian 
land  lower  down  on  the  stream. 
Dontanello  v.  Gust,  86  Wash.  268, 
150  Pac.  420. 

50.  Chasemore  v.  Richards,  7 
H.  L.  Cas.  349;  Hanson  v.  Mc- 
Cue,  42  Cal.  303,  10  Am.  Rep. 
299;  Roath  v.  Driscoll,  20  Conn. 
533,  52  Am.  Dec.  352;  Elster  v. 
Francis,  18  Pick.  (Mass.)  117; 
Village  of  Delhi  v.  Youmans,  50 
Barb.  (N.  Y.)  316;  Frazier  v. 
Brown,  12  Ohio  St.  294;  Elster 
V.  Springfield,  49  Ohio  St.  82,  30 
N.  E.  274;  Wheatley  v.  Baugh, 
25  Pa.  St.  528,  64  Am.  Dec.  721; 
Wheelock  v.  Jacobs,  70  Vt.  162, 
43  L.  R.  A.  (N.  S.)  105,  67  Am. 
St.  Rep.  626,  40  Atl.  51. 

51.  Wood  V.  Waud,  3  Exch. 
748;  Greatrex  v.  Hay  ward,  8 
Exch.  291;  Broadbent  v.  Rams- 
botham,  11  Exch.  602. 

52.  Parks  v.  City  of  Newbury- 


§  517]  Prescription.  2039 

Where  the  civil-law  rule,  giving  the  proprietor  of  the 
upper  tenement  a  natural  right  to  have  his  surface 
water  flow  off  on  the  lower  tenement,  controls,  he  may 
lose  this  right  by  submitting  to  the  obstruction  of  such 
flow  for  the  prescriptive  period/"*'^  In  case  tho  owner 
of  the  upper  tenement  causes  the  water  to  flow  on  the 
lower  tenement  in  a  particular  channel,  the  lower  pro- 
prietor can  prevent  such  action,  and  consequently  his 
failure  so  to  do  may  be  regarded  as  acquiescence  there- 
in, which  confers  the  right  if  continued  for  the  statutory 
period.^* 

One  cannot,  in  this  country,  by  the  maintenance  of 
windows  in  one's  building  overlooking  adjacent  land 
for  the  statutory  period,  acquire  an  easement  of  light 
and  air  in  such  land,  since  this  involves  no  injury  to 
the  land,  or  diminution  of  the  value  of  the  beneficial 
interest  therein,  and  consequently  gives  no  right  of 
action  to  the  landowner.^^  Likewise,  the  right  of  sup- 
port for  a  building  by  another  building  or  by  adjacent 
land  cannot,  by  the  weight  of  authority  in  this  country, 
be  acquired  by  prescription,  since  not  only  is  the 
exercise  of  the  right  not  one  which  causes  injury  to  the 

port,   10  Gray   (Mass.)    28;    White  55.     Western  Granite  &  Marble 

V.  Chapin,  12  Allen    (Mass.)    516;  Co.     v.    Knickerbocker,     103    Cal. 

Swett  V.   Cutts,    50   N.    H.   439,   9  111,    37    Pac.    192;    Guest   v.    Rey- 

Am.   Rep.   276.     Compare  Ross  v.  nolds,    68    111.    478,    18    Am.    Rep. 

Mackeney,    46    N.    J.    Eq.    140,    18  570;    Lahere   v.   Luckey,   23   Kan. 

Atl.  685.  534;     Pierre    v.    Fernald,    26    Me. 

53.  Zerban  v.  Erdman,  258  111.  436,  46  Am.  Dec.  573;  Keats  v, 
486,  101  N.  E.  925;  Tootle  v.  Hugo,  115  Mass.  204,  15  Am.  Rep. 
Clifton,  22  Ohio  St.  247,  10  Am.  80;  Parker  v.  Foote,  19  Wend. 
Rep.  732;  Louisville  &  N.  Ry.  Co.  (N.  Y.)  309;  Mullen  v.  Strieker, 
V.  Mossman,  90  Tenn.  157,  25  Am.  19  Ohio  St.  135,  2  Am.  Rep.  379; 
St.  Rep.  670,  16  S.  W.  64.  Plaverstick    v.    Sipe,    33    Pa.    St. 

54.  Moody  v.  Fremd,  177  Ky.  368;  Napier  v.  Bulwinkle,  5  Rich. 
5,  197  S.  W.  433;  White  v.  Law  (S.  C.)  311;  Hubbard  v. 
Chapin,  12  Allen  (Mass.)  516;  Town,  33  Vt.  295;  Powell  v.  Sinia. 
Schnitzius  v.  Bailey,  48  N.  J.  5  W.  Va.  1,  13  Am.  Rep.  629. 
Eq.  409,  22  Atl.  732;  Glenn  v.  Contra,  Clawson  v.  Primrose,  4 
Line,    155    Mich.    608,    119    N.    W.  Del.  Ch.  643. 

1097. 


2040  Eeal  Pkopebty.  [§  518 

supporting  land  or  building,  but  the  dependence  of  a 
building  on  such  support  is  a  fact  which  is  in  most 
cases  not  discoverable  until  the  support  is  withdrawn."'^ 
In  England,  on  the  other  hand,  the  right  of  support 
may  be  thus  acquired.^''^ 

There  are  several  decisions  in  this  country  that  a 
right  in  the  use  of  a  party  wall  may  be  acquired  by 
prescription,^^  but  this  view,  while  clearly  correct  when 
it  involves  the  placing  of  beams  or  other  parts  of  a 
building  in  or  on  a  wall  upon  adjoining  land,^''  is,  it 
seems,  in  other  cases,  not  involving  any  occupation  of 
the  space  above  such  land,  not  reconcilable  with  the 
principle  that  the  user,  to  be  adverse,  must  be  action- 
able,^" nor  with  the  decisions  above  referred  to,  that 
a  right  of  support  for  buildings  from  adjoining  land 
or  buildings  cannot  be  acquired  by  prescription. 

§  518.  Actual  user  necessary.  In  order  that 
the  doctrine  of  prescription  may  operate  in  one's  favor 
he  must  have  actually  used  the  land  of  another  and  the 
mere    assertion    of   a   right   to   use   it  is    insufficient.®^ 

56.  Richart  v.  Scott,  7  Watts  614;  Weadock  v.  Champe,  193 
(Pa.)  460;  MitcheU  v.  City  of  Mich.  553,  Ann.  Cas.  1918C  874, 
Rome,  49  Ga.  19,  15  Am.  Rep.  160  N.  W.  564;  McVey  v.  Durkin, 
669;  Tunstall  v.  Christian,  80  Va.  136  Pa.  St.  418,  20  Atl.  541; 
1,  56  Am.  Rep.  581;  Handlan  v.  First  Nat.  Bank  of  Wichita  FaUs 
McManus,  42  Mo.  App.  551;  Sul-  v.  Zundelowitz, — Tex.  Civ.  App. 
livan  V.  Zeiner,  98  Cal.  346.     See  — ,  168  S.  W.  40. 

Gilmore     v.     Driscoll,     122     Mass.  59.     As    in   Barry  v.   Edlavitch, 

199,  207.     But  see  City  of  Quincy  84    Md.    95,    33    L.    R.    A.    294,    35 

V.  Jones,  76  111.  231,  20  Am.  Rep.  Atl.   170;    McLaughlin  v.  Cecconi, 

243;    Lasala  v.  Holbrook,  4  Paige  141  Mass.  252,  5  N.  E.  261. 

(N.  Y.)    169,  25  Am.  Dec.  524.  60.     See    Whiting    v.     Gaylord, 

57.  Dalton  v.  Angus,  6  App.  66  Conn.  337,  50  Am.  St.  Rep. 
Cas.    740;    Lemaitre   v.    Davis,    19  87.  34  Atl.  85. 

Ch.   Div.   281.  61.     Peterson  v.  McCullough,  50 

58.  Bright'  v.  J.  Bacon  &  Sons,  Incl.  35;  Gibson  v.  Fischer,  68 
131  Ky.  848.   20  L.   R.   A.    (N.   S.)       Iowa,     29,     25     N.    W.     914;     Fox 


386,  116  S.  W.  268  (dictum) 
Dowling  V.  Hennings,  20  Md.  179 
Brown  v.  Werner,  40  Md.  15 
Schile    V.    Brokhahus,    80    N.    Y, 


River     Flour     &     Paper     Co.     v. 

Kelley,    70    Wis.    287,    35    N.    W. 
744, 


§  519]  Prescription.  2041 

It  has  occasionally  been  asserted  that  no  right 
of  user  can  be  acquired  by  prescription  unless  the  user 
was,  during  the  prescriptive  period,  actually  beneficial 
to  the  person  exercising  it."-  In  some  of  these  cases 
the  question  was  as  to  the  acquisition  of  the  right  to 
divert  water  from  a  stream,  and  the  assertion  of  the 
requirement  of  beneficial  user  involved  merely  the 
application  to  the  case  of  prescription  of  a  require- 
ment recognized  in  those  jurisdictions  in  connection 
with  the  law  of  prior  appropriation.'"''^  "Since  a  right 
of  appropriation  cannot  be  held  without  beneficial  use, 
one  pretending  to  be  an  app'ropriator  has  no  color  of 
title  w^ithout  beneficial  use."*^^  However,  the  pro- 
priety of  such  a  requirement  of  beneficial  use  as 
an  element  of  prescription  even  in  those  states  has 
been  questioned.*^^  And,  generally  speaking  rhe  in- 
troduction of  any  additional  requirements  as  to  the 
characteristics  of  the  user  necessary  for  the  purpose 
of  prescripfion  is  to  be  deprecated,  as  adding  to  the 
existing  complexity  of  the  subject. 

§  519.  Adverse  character  of  user.  In  order  that 
a  right  to  use  another's  land  be  acquired  by  (lie  user 
thereof  for  the  statutory  period,  the  user  must  be  hos- 
tile or  adverse  to  the  owner  of  the  land."*' 

62.  LouisviUe  &  N.  R.  Co.  v.  64.  Wiel,  Water  Rights  in  the 
Hays,  11  Lea  (Tenn.)  382,  47  Am.  Western  States  (2nd  Ed.),  §  247. 
Rep.  291;  Simons  v.  Munch,  115  65.  93  Am.  St.  Rep.  note  to 
Minn.  360,  132  N.  W.  321,  and  Oregon  etc.  Co.  v.  Allen,  at 
cases  cited  in  next  note.  p.    720;     Wiel,    Water    Rights,     § 

63.  Senior     v.     Anderson,     115  247. 

Cal.  496,  47  Pac.  454;  130  Cal.  66.  Humphreys  v.  Blasingame. 
290,  62  Pac.  563;  California  Pas-  104  Cal.  40,  37  Pac.  804;  Dexter 
toral  &  Agricultural  Co.  v.  Medera  v.  Tree,  117  111.  532,  b  N.  K. 
Canal  &  Irrigation  Co.,  167  Cal.  506;  Cox  v.  Forrest,  60  Md.  74; 
78,  138  Pac.  718;  Lavery  v.  Arn-  Chollar  Potosi  Min.  Co.  v.  Ken- 
old,  36  Ore.  84,  57  Pac.  907;  nedy,  3  Nev.  361,  93  Am.  Dec. 
Oregon,  etc.  Co.  v.  Allen,  41  Ore.  409;  Pavey  v.  Vance,  56  Ohio  St. 
209,  93  Am.  St.  Rep.  701,  69  Pac.  162,  46  N.  E.  898;  Pierre  v. 
455;  Cleary  v.  Daniels,  —Utah,  Cloud,  42  Pa.  St.  102,  82  Am.  Dec. 
— ,  167  Pac.  820.  496;   Kearney  y.  Borough  of  West 


2042 


Real  Pkopeety. 


[§  519 


The  courts  usually  refrain  from  an  explicit  state- 
ment of  what  they  mean  by  adverse  user  in  this  con- 
nection, but  it  appears  reasonably  safe  to  say  that  a 
user  is  adverse  if  not  accompanied  by  any  recognition, 
in  express  terms  or  by  implication,  of  a  right  in  the 
landowner  to  stop  such  user  now  or  at  some  time  in 
the  future.  The  recognition  of  the  landowner's  right 
to  put  an  end  to  the  user  precludes  any  presumption, 
from  his  failure  to  assert  such  right,  that  no  such 
right    exists. 

That  the  user  of  the  land  is  under  permission  or 
license  from  the  owner  of  the  land  shows,  it  is  generally 
recognized,  that  the  user  is  not  adverse.^'^  Such  a 
user  evidently  involves  a  recognition  of  the  land- 
owner's right  to  stop  it  now^  or  in  the  future,  and  in 
view  of  such  recognition,  no  inference  can  be  drawn 
from  his  failure  actually  to  stop  it.     But  a  user  which 


Chester,   199    Pa.   St.   392,    49   Atl. 
227. 

67.  Stewart  v.  White,  128  Ala. 
202,  55  L.  R.  A.  211,  30  So.  526; 
Medlock  v.  Owen,  105  Ark. 
460,  151  S.  W.  995;  Thomas  v. 
England,  71  Cal.  456,  12  Pac. 
491;  Cassin  v.  Cole,  153  Cal. 
677,  96  Pac.  277;  Lamhe  v.  Man- 
ning, 171  111.  612,  49  N.  E.  509; 
Anchor  v.  Stewart,  270  111.  57, 
110  N.  E.  385;  Conner  v.  Wood- 
fill,  126  Ind.  85,  22  Am.  St.  Rep. 
568,  25  N.  E.  876;  Sexton  v.  Holt, 
91  Kan.  26,  136  Pac.  934;  Dris- 
coll  V.  Morehead,  147  Ky.  107,  143 
S.  W.  758;  Morse  v.  Williams,  62 
Me.  445;  Kilburn  v.  Adams,  7 
Mete.  (Mass.)  33,  39  Am.  Dec. 
754;  Moore  v.  Bulgreen,  153  Mich. 
261,  116  N.  W.  1005;  Lanier  v. 
Booth,  50  Miss.  410;  Dulce  Realty 
Co.  V.  Staed  Realty  Co.,  245  Mo. 
417,  151  S.  W.  415;  Crawford 
V.    Minnesota   &    M.    Land    &    Im- 


provement Co.,  15  Mont.  153,  38 
Pac.  713;  Bone  v.  James,  82 
Neb.  442,  118  N.  W.  83;  Howard 
V.  Wright,  38  Nev.  25,  143  Pac. 
1184;  Parker  v.  Foote,  19  Wend. 
(N.  Y.)  309;  Wiseman  v.  Luck- 
singer,  84  N.  Y.  31,  38  Am.  Rep. 
479;  Lincoln  v.  Great  Northern 
Ry.  Co.,  26  N.  D.  504,  144  N.  W. 
713;  Wimer  v.  Simmons,  27  Ore. 
1,  50  Am.  St.  Rep.  685;  Zerbey 
V.  Allan,  215  Pa.  383.  64  Atl.  587; 
Turnbull  v.  Rivers,  3  McCord  L. 
(S.  C.)  131,  15  Am.  Dec.  622; 
Turner  v.  South  &  West  Improve- 
ment Co.,  118  Va.  720,  88  S.  E. 
85;  Whaley  v.  Jarrett,  69  Wis. 
613,  2  Am.  St.  Rep.  764,  34  N. 
W.  727.  But  Frederic  v.  Mayers, 
89  Miss.  127,  43  So.  677  appears 
to  assert,  in  an  obscure  way,  that 
a  revocable  license  becomes  ir- 
revocable after  the  prescriptive 
period   has  passed. 

It    has    been    decided    that   the 


§  519] 


Pbesckiption. 


2043 


is  permissive  in  its  inception  may  become  adverse  by 
the  action  of  the  person  exercising  the  user  in  denying 
the  right  of  the  landowner  to  interfere  with  the  user, 
provided  notice  of  such  denial  is  brought  home  to  the 
landowner,*^^ 

When  the  owner  undertakes  to  confer  upon  another 
a  perpetual  right  of  user  in  the  land,  but  fails  to  do  so 
in  a  valid  manner,  as  when  he  makes  an  oral  grant  of 
an  easement,  the  user  of  the  land  by  such  other  in  ac- 
cordance with  the  terms  of  the  invalid  grant  cannot 
be  regarded  as  permissive  and  in  subordination  to  the 
rights  of  the  lando^vner,  but  is  in  effect  adverse  to 
such  rights.^^  Such  a  case  is  analogous  to  that  of 
the    possession    of   land    under   an   invalid   conveyance 


user  is  not  adverse  if  it  was 
under  permission,  although  the 
person  giving  permission  was  a 
tenant  who  had  no  authority  to 
give  permission.  Williamson  v. 
Abbott,  107  S.  C.  397,  93  S.  E. 
15.  This  appears  to  be  entirely 
reasonable. 

That  payment  to  the  land 
owner  of  an  annual  sum  in 
connection  with  the  user  justifies 
an  inference  that  it  is  permis- 
sive, see  Gardner  v.  Hodgson's 
Kingston  Breweries  Co.  (1903) 
App.  Cas.  229;  O'Brien's  Appeal, 
11  Wkly  Notes  Cas.   (Pa.)   229. 

68.  Barbour  v.  Pierce,  42  Cal. 
657;  Hill  v.  Hagaman,  84  ind. 
287;  McAllister  v.  Pickup,  84 
Iowa,  65,  50  N.  W.  556;  Patterson 
V.  Griffith,— (Ky.)—,  62  S.  W. 
884;  Pitzman  v.  Boyce,  111  Mo. 
387,  33  Am.  St.  Rep.  536,  19  S. 
W.  1104;  Hurst  v.  Adams,  86  Mo. 
App.  73;  Taylor  v.  Gerrish,  59  N. 
H.  569;  Eckerson  v.  Crippen, 
110  N.  Y.  585,  1  L.  R.  A.  487.  IS 
N.  E.  443;  Huston  v.  Bybee.  17 
Ore.  140,  2  L.  R.  A.  568.  20  Pac. 


51;  Thoemke  v.  Fiedler,  91  Wis. 
386,  64  N.  W.  1030;  Weidensteiner 
V.  Mally,  55  Wash.  79,  104  Pac. 
143. 

69.     Oneto   v.    Restano.    78   Cal. 
374,  20  Pac.  743;  Myers  v.  Berven. 
166   Cal.  484,   137  Pac.   260;    Gyra 
v.   Winler,   40   Colo.   366,   13   Ann. 
Cas.    841,    91    Pac.    36;     Legg    v. 
Horn,  45  Conn.  415;   Alderman  v. 
New  Haven,   81   Conn.   337,   18   L. 
R.    A.     (N.    S.)     74,    70    Atl.    626; 
McKenzie  v.    Elliott,   134   HI.   156. 
24  N.  E.  965;    Schmidt  v.  Brown, 
226  111.  590,  80  N.  E.  1071;   Parish 
V.    Kaspare,    109    Ind.    586,    10    N. 
E.  109;    Shimanek  v.  Chicago.  M. 
&    St.    P.    Ry.    Co.   —(Iowa),— 152 
N.   W.   574;    Talbott  v.   Thorn,  91 
Ky.  417,  16  S.  W.  88;    Oak  Grove 
Missionary      Baptist      Church      v. 
Rice,  162  Ky.  525.  172  S.  W.  927; 
Jewett    v.    Hussey,    70    Me.    433; 
Stearns  v.  Janes,  12  Allen  (Mass.) 
582;     Sanford    v.    Kern,    223    Mo. 
616,    122    S.    W.    1051;     Wells    v. 
Parker,  74  N.  H.  193,  66  Atl.  121. 
Hearrl    v     Bowcn.- Tex   Civ    Apr. 
— ,     184     S.     W.     234;     Holm     v. 


2044 


Beal  Peoperty. 


[§  519 


thereof,  which  is  ordinarily  adverse  to  the  grantor.'^ 
The  user  of  the  land  under  such  circumstances  in- 
volves no  recognition  of  any  right  as  remaining  in  the 
grantor. 

The  user  of  one  piece  of  land  for  the  benefit  of 
another  piece  cannot  be  adverse  so  long  as  both  are 
in  the  possession  of  the  same  person,  since  in  such 
case  whatever  user  is  made  of  either  by  the  person  in 
possession  is  to  be  imputed  to  the  fact  of  possession."*^" 

A  tenant  under  a  lease  cannot,  it  has  been  decided, 
acquire  by  prescription  a  right  in  land,  near  the  de- 
mised premises,  which  also  belongs  to  the  landlord, 
whether  this  neighboring  land  is  or  is  not  in  the  pos- 
session of  a  tenant  under  a  lease. '''^     Since   the   right 


Davis,  41  Utah,  200,  44  L.  R.  A. 
(N.  S.)  89,  125  Pac.  403;  J-e-hman 
V.   Mills,    46   Wash.   624,   13    L,.    R 

A.  (N.  S.)  990,  13  Ann.  Cas.  923, 
91  Pac.  11.  Contra,  semhle,  Wise- 
man V.  Lucksinger,  84  N.  Y.  31, 
38,  Am.  Rep.  479;  Long  v.  May- 
berry,  96  Tenn.  378,  36  S.  W. 
1040. 

70.     Ante  §  513(e),  note  20. 
70a.     Battishill   v.   Read,   18   C. 

B.  696;  Onley  v.  Gardiner,  4 
M.  &  W.  496;  Damper  v.  Bassett 
(1901)  2  Ch.  350;  Outram  v. 
Maude,  17  Ch.  Div.  391,  405; 
Barker  v.  Mobile  Elec.  Co.,  173 
Ala.  28,  55  So.  364;  Hickox  v. 
Parmelee,  21  Conn.  86;  Broom  v. 
Gizzard,  136  Ga.  297,  71  S.  E. 
430;  Williams  v.  Deskins,  179 
Ky.  61,  200  S.  W.  1;  Pierce  v. 
Fernald,  26  Me.  436.  46  Am.  Dec. 
573;  Murphy  v.  Welch,  128  Mass, 
489;  Vossen  v.  Dautel,  116  Mo. 
379,  22  S.  W.  734;  Stuyvesant  v. 
Woodruff,  21  N.  J.  L.  133,  47 
Am.  Dec.  156;  Stevens  v.  Den- 
nett, 51  N.  H.  324;  Wells  v. 
Parker,    74    N    H.    193,    66    Atl. 


121;  Phillips  v.  PhiUips,  48  Pa. 
St.  178,  86  Am.  Dec.  577;  Payne 
v.  WiUiams,  2  Spears  L.  (S.  C.) 
15;  Crosland  v.  Rogers,  32  S. 
C.  130;  Sasman  v.  Collins,— (Tex. 
Civ.  App.),  115  S.  W.  337;  Mable 
V.  Matteson,  17  Wis.  1;  In  Franz 
V.  Mendonca,  131  Cal.  205,  63  Pac. 
361,  it  is  said  that  the  user 
continues  to  be  adverse  although 
the  same  person  is  in  possession 
under  leases  of  both  properties. 
This  is,  it  is  submitted,  erro- 
neous. See  also  Gerstner  v, 
Payne,— (Mo.  App.)—,  142  S.  W. 
794,  and  Rogers  v.  Flick,  144  Ky. 
844,  139  S_.  W.  1098,  criticized  in 
editorial  note,  10  Mich.  Law  Rev. 
236. 

71.  Gayford  v.  Moffatt,  4  Ch. 
App.  133;  Kilgour  v.  Gaddes, 
(1904)  1  K.  B.  457;  Kuhlmau 
V.  Hecht,  77  111.  570;  Brown  v. 
Dickey,  106  Me.  97,  75  Atl.  382; 
Vossen  v.  Dautel,  116  Mo.  379, 
22  S.  W.  734;  Stevens  v.  Dennett, 
51  N.  H.  324;  Phillips  v.  Phillips, 
48  Pa.  St.  178,  86  Am.  Dec.  577. 


§  519] 


Presckiption. 


2045 


would  be  acquired  by  the  tenant  as  appurtenant  to  the 
land  itself,  and  so  for  the  benefit  of  his  landlord,'^ 
it  would  result  that  the  landlord  would  acquire  a 
right  of  user  against  himself,  an  easement  in  his  own 
land,  a  legal  impossibility.  And  moreover  the  fact 
that  the  user  of  land  is  made  in  connection  with  other 
land  which  he  holds  under  a  lease  from  the  peroon  who 
owns  both  pieces  of  land  is  sufficient  in  itself  to  show 
that  the  user  is  permissive  merely. 

Since  it  is  the  recognition  of  a  riaht  in  the  land- 
owner to  put  an  end  to  the  user  which  deprives  the 
user  of  the  element  of  adverseness,  and  such  recogni- 
tion is  in  its  nature  an  affirmative  fact,  the  burden  of 
proof  in  reference  thereto  is  properly  on  the  landowner, 
that  is,  in  the  absence  of  e^ddence  to  the  contrary,  the 
user  of  another's  land  is  ordinarily  presumed  to  be 
adverse. ''■^  If  evidence  to  the  contrary  is  introduced, 
the  question  of  the  character  of  the  user  is  obviously 
one  of  fact,'^^  and  the  burden  of  proof,  in  the  sense  of 


72.  Ante,  §  516,  note  22. 

73.  Polly  V.  McCali,  37  Ala. 
20;  Fleming  v.  Howard,  150  Cal. 
28,  87  Pac.  908;  Cheda  v.  South- 
ern Pac.  Co.,— (Cal.)— ,  134  Pac. 
717;  Mitchell  v.  Bain  142  Ind. 
604,  42  N.  E.  230;  Smith  v. 
Ponsford,  184  Ind.  53,  13  0  N.  E. 
194;  Stewart  v.  Brumley, —  (Ky.) 
— ,  119  S.  W.  798;  Bordes  v. 
Leece,  179  Ky.  655,  201  S.  W. 
4;  Cox  V.  Forrest,  60  Md.  74; 
Barnes  v.  Haynes,  13  Gray 
(Mass.)  188;  White  v.  Chapin,  12 
Allen  (Mass.)  516;  Berkey  & 
Gay  Furniture  Co.  v.  Valley  City 
Milling  Co.,  194  Mich.  234,  160 
N.  W.  648;  Novinger  v.  Shoop, 
—  Mo.  — ,  201  S.  W.  64;  Moll 
V.  Hagerbaumer,  98  Neb.  555,  153 
N.  W.  560;  Smith  v.  Putnam,  62 
N.  H.  369;  Clement  v.  Bettle,  65 
N.   J.   L.   675,   48   Atl.    567;    Ham- 


mond V.  Zehner,  21  N.  Y.  118; 
American  Bank-Note  Co.  v.  New 
York  El.  R.  Co.,  129  N.  Y.  252, 
29  N.  E.  302;  Pavey  v.  Vance, 
56  Ohio  St.  162,  46  N.  E.  898; 
Gardner  v  Wright,  49  Ore.  609. 
91  Pac.  286;  Steffey  v.  Carpenter, 
37  Pa.  41;  Slater  v.  Price,  96  S. 
C.  245,  80  S.  E.  372;  Dodge  v. 
Stacy,  39  Vt.  558;  Muncy  v.  Up- 
dyke,  119  Va.  6.'{6,  89  S.  E.  884: 
Lechman  v.  Mills,  46  Wash.  624, 
91  Pac.  11,  13  L.  R.  A.  (N.  S.) 
990,  13  Am:  Cas.  923;  Hawkins 
V.  Conner,  75  W.  Va.  220,  83  S. 
E.  982;  Carmody  v.  Mulrooney,  87 
Wis.   552,   58  N.   W.   1109. 

74.  Thomas  v.  England,  71 
Cal.  456,  12  Pac.  491;  Humphreys 
V.  Blasingame,  104  Cal.  40,  37 
Pac.  804;  Hill  v.  Crosby,  2  Pick. 
(Mass.)  466,  13  Am.  Dec.  448; 
Bigelow  Carpet  Co.  v.  Wiggln,  209 


2  R.  P. 


2046 


Real  Propeety. 


[§  519 


risk  of  lion  persuasion  of  the  jury,^^  is,  as  regards  the 
adverse  character  of  the  user  as  well  as  the  other 
elements  of  prescription,  upon  the  person  asserting 
the  prescriptive  right. '** 

While  ordinarily,  as  ahove  stated,  the  user  of 
another's  land  is  presumed  to  he  adverse,  such  a 
presumption  does  not  exist,  it  seems,  in  the  case  of 
unenclosed  land  or,  as  it  may  be  otherwise  expressed, 
evidence  that  the  land  is  unenclosed  is  sufficient  to 
rebut  the  presumption."'  And  it  has  been  decided  that 
when  one  throws  his  land  open  to  the  use  of  the 
public,  or  of  his  neighbors  generally,  a  user  thereof  by 
a  neighboring  landowner,  however  frequent,  will  be 
presumed  to  be  permissive  and  not  adverse,  in  the  ab- 
sence of  any  attendant  circumstances  indicative  of  the 
contrary."^^     And  it  has  been  said  that  if  the  proprie- 


Mass.  542,  95  N.  E.  938;  Burn- 
ham  V.  McQuesten,  48  N.  H.  446; 
Iselin  V.  Starin,  144  N.  Y.  453,  39 
N.  E.  488;  Bennett  v.  Biddle,  140 
Pa.   396,   21   Atl.   363. 

75.  4  Wigmore,  Evidence,  § 
2485. 

76.  District  of  Columbia  v. 
Robinson,  180  U.  S.  92,  45  L.  Ed. 
440;  Clarke  v.  Clarke,  133  Cal. 
667,  66  Pac.  10;  Barlow  v.  Frink, 
171  Cal.  165,  152  Pac.  290;  Shea 
V.  Gavitt,  89  Conn.  359,  L.  R.  A. 
1916 A,  689,  94  Atl.  360;  Rollins 
V.  Blackden,  112  Me.  459,  92  Atl. 
521;  Smith  v.  Sedalia,  152  Mo. 
283,  48  L.  R.  A.  711,  53  S.  W.  907; 
Barber  v.  Bailey,  86  Vt.  219,  84 
Atl.  608,  44  L.  R.  A.  (N.  S.)  98; 
St.  Martin  v.  Skamania  Boom 
Co..  79  Wash.  393,  140  Pac.  355; 
Crosier  v.  Brown,  66  W.  Va.  273, 
25  L.  R.  A.  N.  S.  174,  66  S.  E.  326. 

77.  Card  v.  Cunningham, — 
Ala.—,  74  So.  335;  Clarke  v. 
Clarke,  133  Cal.  667,  66  Pac.  10; 
Illinois   Cent.   R.   Co.   v.   Stewart, 


265  111.  35,  106  N.  E.  512  (unen- 
closed and  unoccupied);  Bowman 
V.  Wickliffe,  15  B.  Mon.  (Ky.)  84; 
Conyers  v.  Scott,  94  Ky.  123,  21 
S.  W.  530,  (But  see  Hansford  v. 
Berry,  95  Ky.  56,  23  S.  W.  665); 
Winlock  V.  Miller,  167  Ky.  717, 
181  S.  W.  330  (unenclosed  wood- 
land); Downing  v.  Benedict,  147 
Ky.  8,  143  S.  W.  756;  Donnell  v. 
Clark,  19  Me.  174;  Davidson  v. 
Nantz,  177  Ky.  50,  197  S.  W.  520; 
Gibson  v.  Durham,  3  Rich.  L. 
85;  Hutto  V.  Tindall,  6  Rich.  L. 
396;  Schulenbarger  v.  Johnstone, 
64  Wash.  202,  116  Pac.  843,  35 
L.  R.  A.  (N.  S.)  941.  Contra,  in 
Pennsylvania  and  West  Virginia 
Worrall  v.  Rhoads,  2  Whart. 
(Pa.)  427;  Walton  v.  Knight,  62 
W.  Va.  223,  58  S.  E.  1025.  The 
Pannsylvania  act  of  1850  provides, 
however,  that  no  right  of  way 
shall  be  acquired  by  prescription 
over    unenclosed    woodland. 

78.     Kilburn   v.    Adams,   7    Met. 
(Mass.)     33,    39    Am.     Dec.    754; 


^  519] 


Prescription, 


2047 


tors  of  churches,  school  houses  and  other  qu(i<i  public 
buildings  enclose  their  grounds  and  provide  unlocked 
gates  for  passage,  an  adjoining  proprietor  cannot  ob- 
tain title  to  a  right  of  way  by  occasionally  passing 
through  the  gates  and  over  the  enclosed  land  to  his 
own  premises,''' 

The  presumption  that  the  user  of  another's  land 
was  adverse  may  obviously  be  rebutted  by  evidence  that 
the  person  exercising  the  user  recognized  the  right  of 
the  landowner  to  stop  such  user.  And  so  the  fact  that  the 
former  apparently  recognizes  the  latter 's  right  to 
make  the  user  less  convenient,  as  by  failing  to  object 
to  the  erection  of  a  gate  or  bars  over  a  way,  may  tend 
to  rebut  such  presumption.*^  The  presumption  that  the 
user  was  adverse  may  also  be  rebutted  by  evidence  that 
it  was  under  permission  or  license,  this  in  eifeet  in- 
volving a  recognition  of  the  landowner's  right  to  stop 
it.     If  the  user  was  originally  by  permission,  it  is  pre- 


Burnham  v.  McQuesten,  48  X.  H. 
446;  Cobb  v.  Davenport,  32  N.  J. 
L.  369;  Howard  v.  Wright,  38 
Xev.  25,  143  Pac.  1184;  Plimpton 
T.  Converse,  44  Vt.  158:  Cincin- 
nati Southern  R.  Co.  v.  Slaughter, 
31  Ky.  L.  913,  104  S.  W.  291; 
O'Neil  v.  Blodgett,  53  Vt.  213; 
Witt  V.  Creasey,  117  Va.  872,  86 
S.  E  128;  And  see  Cook  v.  Gam- 
mon, 93  Ga.  298,  20  S.  E.  332; 
City  of  Chicago  v.  Chicago,  R.  I. 
&  P.  Ry.  Co.  152  111.  561,  38  N. 
768. 

A  like  rule  appears  to  be  ap- 
plied in  Hunter  v.  Emerson,  75 
Vt.  173,  53  Atl.  1070,  with  refer- 
ence to  the  right  to  enter  on 
another's  land  in  order  to  take 
water  from  a  spring.  Compare 
Gentry  v.  Piercy,  175  Ky.  174,  193 
S.    W.    1017. 

79.  Menter  v.  First  Baptist 
Church,   159   Mich.   21,   123   N.  W. 


585.  And  that  this  is  the  rule 
in  the  case  of  grounds  attached  to 
such  buildings,  if  they  are  un- 
enclosed, see  Kilburn  v.  Adams, 
7  Mete.  (Mas.?.)  33,  39  Am.  Dec. 
754;  Thompson  v.  Bowers,  115 
Me.    6,    97    Atl.    1. 

80.  Prewitt  v.  Hustonville 
Cemetery  Co.,  31  Ky.  L.  Rep.  125, 
101  S.  W.  892;  Downing  v.  Beae- 
dict.  147  Ky.  8,  143  S.  W.  756; 
Cahill  v  Mangold,  151  Ky.  156, 
151  S.  W.  373;  Moll  v.  Hager- 
baumer,  98  Neb.  555,  151  X.  W. 
300;  Howard  v.  Wright,  38  Nev. 
25,  143  Pac.  1184;  Peters  v.  Rob- 
ertson, 73  Ore.  263,  144  Pac.  568; 
Schulenbarger  v.  Johnstone.  64 
Wash.  202;  116  Pac.  843,  35  L.  R. 
A.  (S.  S.J  941.  Compare  MoU  v. 
Hagerbaumer,  97  Neb.  809,  153  N. 
W.  560;  Demuth  v.  Amweg,  90  Pa. 
St.    181. 


2048 


Real  Peopeety. 


[§  519 


sumed  to  have  so  continued,  in  the  absence  of  af- 
firmative evidence  of  the  assertion  of  a  right  to  such 
user  or  a  repudiation  of  the  landowner's  right  to  stop 
it.»i 

The  user  by  another  of  a  way  or  space  laid  out  or 
left  by  the  landowner,  concurrently  with  its  user  by  the 
latter,  has  occasionally  been  regarded  as  presumably 
by  permission  of  the  landowner  ;*2  but  w^hether  such 
user  is  permissive  would  seem  properly  to  be  deter- 
minable with  reference  to  all  the  circumstances  of  the 
case,  more  particularly  the  character  and  location  of 
the  way  or  place  of  passage.  The  mere  fact  that  the 
owner  of  the  land  also  passes  in  the  same  place  or 
alone:  the  same  line  would  not  seem  in  itself  sufficient 


81.  Brandon  v.  Umpqua  Lum- 
ber &  Timber  Co.,  'ZQ  Cal.  App. 
96,  146  Pac.  46;  Fightmaster  v. 
Taylor,  147  Ky.  469,  144  S.  W. 
381;  LouisviUe  &  N.  R.  Co.  v. 
Cornelius,  165  Ky.  132,  176  S.  W. 
964;  Flagg  v.  PhiUips,  201  Mass. 
216,  87  N.  E.  598;  Fitzman  v. 
Boyce,  111  Mo.  387,  33  Am.  St. 
Rep.  536,  19  S.  W.  1104;  Howard 
V.  Wright,  38  Nev.  25,  143  Pac. 
1184;  Flora  v.  Carbean,  38  N.  Y. 
Ill;  Yeager  v.  Woodruff,  17 
Utah,  361,  53  Pac.  1045;  Witt  v. 
Creasey,  117  Va.  872,  S6  S.  E. 
128;  Schulenberger  v.  Johnstone, 
64  Wash.  202,  35  L.  R.  A.  (N.  S.) 
941,  116  Pac.  843. 

That  one  who  purchases  land 
mistakenly  supposes  that  his  ven- 
dor's user  of  adjoining  land  be- 
longing to  another  was  not  per- 
missive, has  been  held  not  in  it- 
self to  make  the  vendee's  user  of 
the  latter  land  adverse.  Luce  v. 
Carley,  24  Wend.  (N.  Y.)  451.  35 
Am.  Dec.  637;  Yeager  v.  Wood- 
ruff, 17  Utah,  361,  53  Pac.  1045. 
But  see  Conaway  v  Toogood,  172 


Cal.  706,  158  Pac.  200.  In  Toney 
V.  Knapp,  142  Mich.  652,  106  N.  W. 
552,  it  was  held  that  after  a  li- 
cense of  passage  was  revoked  by 
the  licensor's  conveyance  of  his 
land,  the  subsequent  user  of  the 
land  for  passage  by  the  licensee 
and  persons  claiming  under  him 
was  adverse.  See  the  discussion 
in  Editorial  note,  5  Mich.  Law 
Rev.  545. 

82.  Barker  v.  Mobile  Electric 
Co.,  173  Ala.  28,  55  So.  364; 
Manion  v.  Creigh,  37  Conn.  464; 
Gascho  V.  Lennert,  176  Ind.  677, 
97  N.  E.  6;  HaU  v.  McLeod,  2 
Mete.  (Ky.)  98;  Anthony  v.  Ken- 
nard  Bldg.  Co.,  188  Mo.  704,  87  S. 
W.  921;  Howard  v.  Wright,  38 
Nev.  25,  143  Pac.  1184;  Peters  y. 
Robertson,  73  Ore.  263,  144  Pac. 
568;  Sassman  v.  Collins,  53  Tex. 
Civ.  App.  71,  115  S.  W.  337; 
Harkness  v.  Woodmansee,  7  Utah, 
227,  26  Pac.  291.  So  it  has  been 
said  that  w^hen  a  space  is  design- 
edly left  open  by  the  owner  for 
his  own  convenience  the  presump- 
tion   ordinarily   is   that   the   user 


§  520] 


Prescription. 


2049 


to  show  that  the  user  is  permissive.^^  There  are  several 
decisions  to  the  effect  that  if  two  adjoining  proprietors 
establish  a  way,  for  their  mutual  accommodatiou,  upon 
the  division  line  between  the  two  properties,  and  each 
uses,  for  the  j^urpose  of  passage,  the  part  of  the  way 
on  the  other's  land  as  well  as  that  on  his  own,  such 
user  is  to  be  presumed  to  be  adverse. ^^ 

That  the  owner  of  the  dominant  tenement  joined 
with  the  owner  of  the  servient  tenement  in  repairing 
the  appliances  by  means  of  which  the  user  was  exer- 
cised does  not  show  that  the  user  is  permissive  and 
not  adverse.*^* 

§  520.  Necessity  of  claim  of  right.  It  is  fre- 
quently stated  that,  in  order  that  one  may  acquire  a 
right  by  prescription,  the  user  must  be  under  claim  of 
right.*^     Sometimes   this   requirement  is   stated  as  ad- 


of  such  space  by  another  even 
for  his  own  purpose  is  permis- 
sive. Gascho  V.  Lennert,  176,  Ind. 
677,   97   N.   E.   6. 

83.  See  Bennett  v.  Biddle,  150 
Pa.   St.  420,  24  Atl.  738. 

84.  Thompson  v.  Easley,  87  Ga. 
320,  13  S.  E.  511;  Clark  v.  Hen- 
ckel,— (Md.)— ,  26  Atl.  1039;  Dow- 
ling  V.  Hennings,  20  Md.  179,  8:5 
Am.  Dec.  545;  Barnes  v.  Haynes, 
13  Gray  (Mass.)  188,  74  Am.  Dec. 
629;  Jensen  v.  Showalter,  79  Neb. 
544,  113  N.  W.  202;  Nicholls  v. 
Wentworth,  100  N.  Y,  455,  3  N. 
E.  482;  Craven  v.  Rose,  3  S.  C. 
72  See  Scott  v.  Dishough,  83 
Ark.  369,  103  S.  W.  1153.  But 
see  Wilkinson  v.  Hutzel,  142 
Mich.   674,   lOG   N.  W.   207. 

84a.  Watkins  v.  Peck,  13  N.  H. 
360;  Shaughnessey  v.  Leary,  1G2 
Mass.  108,  38  N.  E.  197. 

85.  Union  Mill  &  Mining  Co. 
V.  Ferris,  2  Sawy.  176,  Fed  Cas. 
No.   14371;    Trump  v.   McDonnell, 


120  Ala.  200,  24  So.  353;  Barbour 
V.  Pierce,  42  Cal.  657;  Brandon 
v.  Umpqua  Lumber  &  Timber 
Co.,  26  Cal.  App.  96,  146  Pac. 
46;  Clarke  v.  Clarke,  133  Cal. 
667,  66  Pac.  10;  Medlock  v.  Owen, 
105  Ark.  460,  151  S.  W.  995; 
Brossard  v.  Morgan,  7  Idaho,  215, 
61  Pac.  1031;  Dexter  v.  Tree,  117 
111.  532,  6  N.  E.  506;  Hill  v. 
Hagaman,  84  Ind.  287;  Parish  v. 
Kaspare,  109  Ind.  586,  10  N.  E. 
109;  Bowman  v.  Wickliffe,  15  B. 
Mon.  (Ky.)  84;  Rollins  v.  Black- 
den,  112  Me.  459,  Ann.  Cas.  1917A 
875,  92  Atl.  521;  Sargent  v. 
Ballard,  9  Pick.  (Mass.)  251; 
Brace  v.  Yale,  10  Allen  (Mass.) 
441;  Bigelow  Carpet  Co.  v.  Wig- 
gin,  239  Mass.  542,  95  N.  E.  938; 
Wallace  v.  Fletcher,  30  N.  H.  434; 
Burnham  v.  McQuesten,  48  N.  U. 
446;  Cobb  v.  Davenport,  32  N.  J. 
L.  369;  Felton  v.  Simpson,  11 
Ired.  L.  (33  N.  C.)  84;  Louisville 
&    N.    R.    Co.    V.    Hays,    11    Lea. 


2050 


Real  Peopebty. 


[§  520 


ditional  to  that  of  the  adverseness  of  the  user,  and 
sometimes  as  explanatory  of  what  the  requirement  of 
adverseness  means.  In  whichever  way  it  be  av^serted, 
the  recognition  of  such  a  requirement,  like  that 
of  claim  of  title  as  a  prerequisite  to  the  running 
of  the  statute  of  limitations  in  favor  of  one  wrongfully 
in  possession  of  land,  involves  considerable  difficulty. 
It  appears  to  be  conceded  that  this  requirement  of 
claim  of  right  does  not  involve  any  necessity  of  a 
verbal  assertion,  during  the  period  of  user,  of  a 
right  to  exercise  such  user,  and  that  it  is  sufficient  if 
an  assertion  of  such  a  claim  can  be  inferred  from  the 
circumstances  of  the  user  itself.^*^  And  so  it  has  been 
stated  that,  in  the  absence  of  evidence  to  the  contrary, 
the  user  of  another's  land  without  interruption  for  the 
prescriptive  period  will  be  presumed  to  have  been 
under  claim  of  right. ^'^     This  requirement  of  claim  of 


(Tenn.)  382,  47  Am.  Rep.  291; 
Dodge  V.  Stacy,  39  Vt.  558;  Wilder 
V.  Wheeldon,  56  Vt.  344;  Kent 
V.  Dobyns,  112  Va.  586,  72  S. 
E.  139;  Bisbee  v.  Lacky,  97 
Wash.  447,  166  Pac.  638.  In 
Boyd  V.  Morris,  32  Ky.  L.  Rep. 
642,  106  S.  W.  867,  it  is  said  to 
be  immaterial  whether  the  ad- 
verse use  of  a  passway  over  the 
land  of  another  is  claimed  as 
a  matter  of  right  or  merely  as  a 
matter  of  convenience. 

86.  Deerfield  v.  Connecticut 
R.  R.,  144  Mass.  325,  11  N.  E. 
105:  Smith  v.  Putnam,  62  N. 
H.  369;  Hammond  v.  Zehner,  21 
N.  Y.  118;  Townsend  v.  BisseU, 
4  Hun  (N.  Y.)  297;  Snowden  v. 
Bell,  159  N.  C.  497,  75  S.  E.  721; 
Pavey  v.  Vance,  56  Ohio  St.  162, 
46  N.  E.  898;  Hall  v.  Austin,  20 
Tex.  Civ.  App.  59,  48  S.  W.  53; 
Barber  v.  Bailey,  86  Vt.  219,  44 
L.  R.  A.  (N.  S)  98,  84  Atl.  608; 
Dodge  V.   Stacy,   39   Vt.    558.     An 


Iowa  statute  provides  that  user 
shall  not  be  evidence  of  a  claim 
of  right,  and  that  express  notice 
of  the  claim  must  be  given.  See 
Gates  V.  Colax  Northern  R.  Co., 
177  Iowa,  690,  159  N.  W.  456; 
McBridge  v.  Bair,  134  Iowa,  611, 
112   N.  W.   169. 

87.  Smith  v.  Ponsford,  184 
Ind.  53,  110  N.  E.  194;  Mitchell 
V.  Pratt,  177  Ky.  438,  197  S.  W. 
961;  Blake  v.  Everett,  1  Allen 
(Mass.)  248;  Miller  v.  Garlock, 
8  Barb.  (N.  Y.)  153;  Pavey  v. 
Vance,  56  Ohio  St.  162,  46  N. 
E.  898;  Barber  v.  Bailey,  86 
Vt.  219,  44  L.  R.  A.  (N.  S.)  98, 
84  Atl.  608;  Poronto  v.  Sinnott, 
89  Vt.  479,  95  Atl.  647;  Muncy 
v.  Updike,  119  Va.  636,  89  S.  E. 
884;  Rogerson  v.  Shepherd,  33 
W.  Va.  307,  10  S.  E.  632;  Wend- 
ler  V.  Woodward,  93  Wash.  684, 
161   Pac.    1043. 

But  the  burden  of  proof,  in 
the  sense  of  risk  of  non  persua- 


§  520]  Pbescriptiox.  2051 

right  thus  appears  to  resolve  itself  into  a  requirement 
merely  of  a  user  which  will  justify  an  inference  or  pre- 
sumption of  such  a  claim,  and  the  only  user  which  can 
possibly  satisfy  this  requirement  is  obviously  a  user 
''as  of  right,"  that  is,  a  user  unaccompanied  by  any 
recognition  of  a  right  in  the  landowner  to  stop  such 
user.  It  would  be  more  satisfactory  if  the  courts,  in- 
stead of  asserting  that  the  user  must  be  under  claim 
of  right,  would  assert  merely  that  it  must  be  ''as  of 
right  "^^  or  w^ould  be  satisfied  with  the  statement  that 
it  must  be  adverse,  which  apparently  means  the  same. 
As  it  is  not  necessary  that  the  person  exercising  the 
wrongful  use  verbally  assert  a  claim  of  right  to  make 
such  use,  so,  it  is  conceived,  it  is  not  necessary  that  he 
believe  himself  to  have  such  a  right,  that  is,  a  mental 
claim  of  right  is  no  more  necessary  than  a  verliai  claim 
of  right.  It  is  recognized  that  good  faith  is  not  neces- 
sary to  entitle  one  to  the  benefit  of  the  statute  of  limi- 
tations,^^ and  there  is  no  reason  for  regarding  it  as 
necessary  for  the  application  of  the  doctrine  of  pre- 
scription.^*^ 

sion  of  the  jury,  is  necessarily  Act,  the  two  expressions  "as 
upon  the  person  asserting  ihe  of  right"  and  "claiming  right" 
prescriptive  right.  Shea  v.  are  used,  and  they  are  regarded 
Gavitt,  89  Conn.  359,  L.  R.  A.  as  similar  in  meaning.  Tickle 
1916A  689,  94  Atl.  360;  Rollins  v.  Brown,  4  Ad.  &  El.  369,  and 
V.  Blackden,  112  Me.  459,  Ann.  "as  of  right,"  it  has  been  decid- 
Cas.  1917A  875,  92  Atl.  521;  ed,  means  as  a  person  right- 
Smith  V.  Sedalia,  152  Mo.  283,  fully  entitled  would  have  en- 
48  L.  R.  A.  711,  53  S.  W.  907;  joyed  the  user.  Bright  v.  Wal- 
St.  Martin  v.  Skamania  Boom  ker,  1  Cromp.  Mees.  &  Ros.  211, 
Co.,  79  Wash.  393,  140  Pac.  355;  while  the  user  is  not  "as  of 
District  of  Columbia  v.  Robin-  right"  if  permissive.  Inter- 
son,  180  U.  S.  92,  45  L.  Ed.  440  national  Tea  Stores  v.  Hobbs 
(dictum).  (1903)     2     ch.     165;     Gardner    v. 

88.     As   in   Polly  v.   McCall,    37  Hodgson's       Kingston        Brewery 

Ala.    20;    Stevens    v.    Dennett,    51  (1903)    App.   Cas.    229. 

N.  H.  324;    Worrall  v.   Rhoads,   2  89.     Ante,   §    504   note    72. 

Whart.     (Pa.)     427;     Webster    v.  90.     The  decision   in   Wilder  v. 

Lowell,    142    Mass.    324,    8    N.    E.  Wheeldon.    56    Vt.    ."'.44.    that    the 

54.  claim     of     a     right     of     way     by 

In     the     English     Prescription  prescription      was     defeated     by 


2052 


Eeal  Peopeety. 


[§  521 


§  521.  Necessity  of  notice  to  landowner.  It  has 
been  quite  frequently  stated  that  the  adverse  user  must 
be  known  to  the  owner  of  the  land  in  order  tliat  the 
doctrine  of  prescription  may  apply  as  against  him.^^ 
But  it  appears  that  actual  knowledge  on  his  part  need 
not  be  shown,  it  being  sufficient  that  the  user  is  so 
visible  and  notorious  that,  in  the  exercise  of  due  dili- 
gence, he  would  learn  thereof  .^^  Otherwise,  as  has  been 
remarked  ''a  non  resident,  or  a  landowner  unusually  in- 
attentive to  his  property  and  business  might  escape  the 
operation  of  the  rule  of  prescription  under  circum- 
stances which  would  expose  to  it  a  resident  or  land- 
owner who  kept  well  informed  respecting  his  property, 


evidence  that  the  claimant 
"never  entertained  any  cliim  ct 
right  to  use  the  way,"  is,  it  is 
submitted,    erroneous. 

91.  Stewart  v.  White,  128  Ala. 
202,  55  L.  R.  A.  211,  30  So. 
526;  American  Co.  v.  Bradford, 
27  Cal.  360;  Wills  v.  Babb,  222 
111.  95,  6  L.  R.  A.  (N.  S.)  136, 
78  N.  E.  42;  Peterson  v.  Mc- 
Cullough,  50  Ind.  35;  Zigefoose, 
v.  Zigefoose,  69  Iowa,  391,  28  N. 
W.  654;  George  Tt  Stagg  Co.  v. 
Frankfort  Modes  Glass  Works, 
175  Ky.  330,  194  S.  W.  333; 
Barry  v.  Edlavitch,  84  Md.  95, 
33  L.  R.  A.  294,  35  Atl.  170; 
Sargent  v.  Ballard,  9  Pick. 
(Mass.)  251;  Holman  v.  Richard- 
son, 112  Miss.  216,  72  So.  921; 
Gross  v.  Jones,  85  Neb.  77,  122  N. 
W.  681;  Wallace  v.  Fletcher,  30 
N.  H.  434;  Cobb  v.  Davenport, 
32  N.  J.  L.  369;  Wooldridge  v. 
Coughlin,  46  W.  Va.  345,  33  S. 
E.   233. 

92.  Jesse  French  Piano  & 
Organ  Co.  v.  Forbes,  129  Ala. 
471,  87  Am.  St.  Rep.  71,  29 
So.  683;  Abbott  v.  Pond,  142 
Cal.    393,    76    Pac.    60;    Lockwood 


V.  Lawrence,  77  Me.  297,  52  Am. 
Rep.  73;  Deerfield  v.  Connecticut 
R.  R.,  144  Mass.  325,  11  N.  E. 
105;  O'Brien  v.  Goodrich,  177 
Mass.  32,  58  N.  E.  151;  Mc- 
Cracken  v.  MacNeal,  169  Mich. 
414,  135  N.  W.  461;  Holman  v. 
Richardson,  115  Miss.  169,  L. 
R.  A.  1917F  942,  76  So.  136; 
Wells  V.  Parker,  74  N.  H.  193,  66 
Atl.  121;  Carlisle  v.  Hooper,  21 
N.  J.  Eq.  576;  Treadwell  v.  Ins- 
lee,  120  N.  Y.  458,  24  N.  E.  651; 
Salem  Mills  Co.  v.  Lord.  42  Ore. 
82,  69  Pac.  1033,  70  Pac.  832; 
Reimer  v.  Stuber,  20  Pa.  St.  458, 
59  Am.  Dec.  744;  Hughesville 
Water  Co.  v.  Person,  182  Pa.  St 
450,  38  Atl.  584;  Perrin  v.  Gar- 
field, 37  Vt.  304;  Arbuckle  v. 
Ward,  29  Vt.  43;  Davison  v. 
Columbia  Lodge  No.  8,  K.  P.,  90 
Wash.  461.  1.^6  Pac.  o83:  Daltoc 
V.  Angus,  6  App.  Cas.  740  at  801, 
per  Selborne,  L.  C;  Union  Light- 
erage Co.  V.  London  Graving 
Dock  Co..  (1901)  2  Ch.  300, 
(1902)  2  Ch.  557.  Compare  Cheda 
V.  Southern  Pac.  Co.,  22  Cal.  App. 
373,    134    Pac.    717. 


§  522] 


Prescription. 


2053 


and   thus   diligence  would  be   punished  and  laches   re- 
warded.'"'^ 

The  owner  of  the  land,  having  notice,  ex])ress  or 
implied,  of  the  user,  may  properly,  it  would  seem,  be 
charged  with  notice  of  the  adverse  character  thereof, 
unless  the  circumstances  are  such  as  to  raise  a  pro- 
sumption  that  it  is  permissive.^^  It  has,  however,  been 
occasionally  stated  in  general  terms  that  the  land- 
owner must  have  notice  of  the  adverse  character  of 
the  user.*-^ 


§  522.  Necessity  of  exclusive  user.  It  is  some- 
times said  that,  in  order  to  acquire  a  right  of  user  by 
prescription,  the  user  during  the  prescriptive  must  bo 
exclusive,''*^  but  this  appears  to  be  so  in  a  very  limited 
sense,  if  at  all.^'     For  instance,  the  user  of  another's 


93.  93  Am.  St.  Rep.  at  p  722, 
note  to  Oregon,  etc..  Ditch  Co. 
V.  Allen  Ditch  Co.  That  if  the 
user  is  known,  it  is  immaterial 
whether  it  is  open  or  notorious, 
see  Fogarty  v.  Fogarty,  129  Ca'. 
46,  61  Pac.  570. 

94.  See  Trustees  of  CincinnaH 
Southern  R.  Co.  v.  Slaughter, 
31  Ky.  L.  Rep.  913,  104  S.  W. 
291;  Wells  v.  Parker,  74  N.  H. 
193,  66  Atl.  121;  Barber  v 
Bailey,  86  Vt.  219,  44  L.  R.  A. 
(N.   S.)    98,   84   Atl.   608. 

95.  Menter  v.  First  Baptist 
Church,  159  Mich.  21,  123  N.  Y/. 
585;  Brandon  v.  Umpqua  Lumber 
&  Timber  Co.,  26  Cal.  App.  96, 
146  Pac.  46;  Callan  v.  Waiters, 
— Tex:  Civ.  App.—,  190  S.  W.  829. 

In  Snowden  v.  BeU,  159  N.  C 
497,  75  S.  E.  721,  it  is  said  that 
the  user  must  be  such  as  to  give 
notice  of  the  claim  of  right. 
In  Barber  v.  Bailey,  86  Vt.  219, 
44  L.  R.  A.  (N.  S.)  98,  84 
Atl.     608;      Poronto     v.     Sinnott, 


89  Vt.  479,  95  Atl.  647,  it  ia 
said  that  the  fact  that  the  use 
is  notorious  raises  a  presump- 
tion that  it  is  under  claim  of 
right. 

86.  Turner  v.  Selectmen  of 
Hebron,  61  Conn.  175,  14  L.  R. 
A.  386,  22  Atl.  951;  Waters  v. 
Snouffer,  88  Md.  391,  41  Atl. 
785;  Day  y.  Allender,  22  Md. 
511;  Miller  v.  Gariock,  8  Barb. 
(N.  Y.)  153;  Reid  v.  Garnett, 
101  Va.  47,  43  S.  E.  182.  &e*» 
22  Am.  &  Eng.  Encyc.  Law  (2nd 
Ed.)    1203. 

97.  It  has  been  said  that  "it 
is  not  necessary  that  the  one 
who  claims  the  easement  should 
be  the  only  one  who  can  or  may 
enjoy  that  or  a  similar  right 
over  the  same  land,  but  that  hia 
right  should  not  depend  for  itu 
enjoyment  upon  a  similar  right 
In  others,  and  that  he  may  ex- 
ercise it  under  some  claim  ex- 
isting in  his  favor,  independent 
of  all  others."     Washburn,  Ease- 


2054 


Real  Propeety. 


:§  522 


land  for  purposes  of  passage,  if  continued  for  the  pre- 
scriptive period,  may  operate  to  create  an  easement  of 
a  right  of  way,  although  the  owner  of  the  land  also 
passes  upon  the  same  line'*^  or  allows  others  to  pass 
thereon,**^  nor  is  it  material,  in  this  regard,  that  an 
exactly  similar  easement  of  passage  in  favor  of  another 
is  already  existent,^  or  is  in  course  of  establishment.^ 
The  user  of  another's  land  merely  as  one  of  the  public 
does  not,  it  is  true,  although  continued  for  the  pre- 
scriptive period,  ordinarily  give  an  individual  right  of 
user,^  but  this  is  either  because  the  circumstances  are 
such  as  to  indicate  that  the  user  was  permissive,'*  or 
because,  assuming  the  user  to  be  adverse,  there  is  then 
an  adverse  user  by  the  public,  and  the  user  results  in 
the  acquisition  of  a  right  by  the  public^  and  not  by  an 


ments  (4th  Ed.)  164.  See  to  th» 
same  general  effect,  McKenzie 
V.  EUiott,  134  in.  156,  24  N. 
E.  965;  Schmidt  v.  Brown,  226 
111.  590,  80  N.  E.  1071;  Reid  v. 
Garnett,  101  Va.  47,  43  S.  E. 
182;  Poronto  v.  Sinnott,  89  Vt. 
479,  95  Atl.  647.  In  Davis  v. 
Brigham,  29  Me.  391,  It  is  said 
that  "the  word  exclusive  in 
this  connection  can  only  mean 
that  the  enjoyment  of  the  ease- 
ment as  claimed,  whether  it  he 
a  limited  or  more  general  en- 
joyment, should  exclude  others 
from    a    participation    of    it.". 

98.  Bennett  v.  Biddle,  150  Pa. 
St.  420.  24  Atl.  738:  Schmidt 
V.  Brown,  226  III.  590,  80  N.  B. 
1071. 

99.  McKenzie  v.  Ellioit.  134 
111.  156,  24  N.  E.  965;  Thompson 
V.  Bowes,  115  Me.  6,  97  Atl.  1; 
Cox  V.  Forest,  60  Md.  74;  San- 
ford  V.  Kern,  223  Mo.  616,  122 
S.  W.  1051:  Nash  v.  Peden,  1 
Speers,  22.  So  in  the  case  of  an 
irrigation  ditch,  which  was   used 


by    others.      Silva    v.    Hawn,    10 
Cal.  App.   544,  102  Pac.   952. 

1.  Webster  v.  Lowell,  142 
Mass.  324,  8  N.  E.  54;  Ballard 
V.  Demmon,  156  Mass.  449,  31 
N.  E.  635.  So  it  has  been  decid- 
ed that  the  fact  that  one  per- 
son has  a  right  of  flowage  in 
certain  land  does  not  preclude 
another  from  acquiring  by  pre- 
scription a  right  of  flowage 
therein.  Davis  v.  Brigham,  29 
Me.    391. 

2.  Kent  v.  Dobyns,  112  Va. 
586.   72    S.   E.    139. 

3.  Merwln  v.  Wheeler.  41 
Conn.  14;  Stevens  v.  Dennett. 
51  N.  H.  324;  Day  v.  AUender, 
22  Md.  jll;  Prince  v.  Welbourn. 
1  Rich.  L.  (S.  C.)  58;  Rowland 
V.  Wolfe,  1  Bailey  L.  (S.  C.)  56; 
Reid  V.  Garnett.  101  Va.  47.  43 
S.  E.  182;  Sassman  v.  Collins, 
53  Tex.  Civ.  App.  71,  115  S.  W. 
337;  Muncy  v.  Updyke.  119  Va. 
636,   89    S.   E.    884. 

4.  Ante,  §   519,  note  79. 

5.  Post,   §   533. 


§§  523,  524]  Prescription.  2055 

individual.  Likewise,  although,  in  order  to  acquire  a 
prescriptive  right  to  fish  in  navigable  waters,  to  the  ex- 
clusion of  the  public,  one's  fishing  therein  during  the 
prescriptive  period  must  be  exclusive  of  the  public,  in 
the  sense  that  the  public  must  be  prevented  by  him  from 
fishing  at  that  place,*'  this  is  for  the  reason  that  other- 
wise his  fishing  would  be  merely  the  exercise  of  a  right 
appertaining  to  him  as  one  of  the  public. 

§523.  Necessity  of  peaceable  user.  The  user  must 
it  is  said,  in  order  to  ripen  into  a  prescriptive  right,  be 
peaceable.'^  Just  what  this  means  does  not  clearly  ap- 
pear,^ but  it  may  be  presumed  to  mean  that  the  user  is 
ineffectual  if  its  exercise  involves  the  forcible  over- 
coming of  resistance  interposed  by  the  landowner  or 
forcible  removal  of  physical  obstacles  interposed  by 
the  latter.  The  requirement  finds  its  justification,  it 
would  seem,  in  the  consideration  of  the  impropriety  of 
allowing  one  to  acquire  a  right  by  the  continuous  repeti- 
tion of  forcible  acts  of  aggression,  thus  placing  a  prem- 
ium upon  the  commission  of  such  acts,  and  also  in  the 
fact  that  the  necessity  of  resorting  to  force  in  order  to 
accomplish  the  user  clearly  demonstrates  a  lack  of  ac- 
quiescence on  the  part  of  the  landowner. 

§  524.  Necessity  of  right  of  action.  In  order  that 
a  right  of  using  another's  land  be  acquired  by  lapse  of 
time,  the  user  must  have  been  such  as  to  give  rise  to  a 

6.  Chalker  v.  Dickinson,  1  S.)  538;  Cave  v.  Crafts.  53  Cal. 
Conn.  384,  6  Am.  Dec.  250;  Day  135;  Trenton  Water  Power  Co. 
V.  Day,  4  Md.  262;  Lakeman  v.  v.  Raff.  36  N.  J.  L.  335;  Rhodes 
Burnham,  7  Gray  (Mass.)  437;  v.  Whitehead,  27  Tex.  304. 
Hume  V.  Rogue  River  Packing  Co.,  8.  See  Lehigh  Valley  R.  Co. 
51  Ore.  237,  31  L.  R.  A.  (N.  S.;  v  McFarlan,  43  N.  J.  L.  605.  622. 
396,  131  Am.  St.  Rep.  732,  In  Montecito  Valley  Water  Co. 
83  Pac.  391,  92  Pac.  1065,  96  v.  Santa  Barbara,  144  Cal.  578. 
Pac.  865;  Sloan  v.  Biemillor,  34  77  Pac.  1113.  it  is  said  that 
Ohio   St.  492.  peaceable      in      this      connection 

7.  Stillman     v.      White     Rock  means  uninterrupted. 
Mfg.    Co.,    3    Woodb.    &    M.     (U. 


2056 


Eeal  Propeety. 


L§  524 


right  of  action  on  the  part  of  the  owner,  since,  if  he 
cannot  legally  protect  himself  against  the  user,  no  infer- 
ence can  be  drawn  from  his  failure  to  do  so.^  Provided 
a  right  of  action  exists  on  account  of  the  user  of  the 
land,  the  fact  that  there  is,  by  such  user,  merely  an  in- 
fringement of  the  right  of  property,  and  no  actual  dam- 
age to  the  land,  does  not  prevent  the  running  of  the 
prescriptive  period.^"  And  so  it  has  been  held  that  one 
may  acquire  by  prescription,  as  against  a  lower  riparian 
owner,  the  right  to  divert  water  from  the  stream, 
although  such  a  lower  owner  has,  during  the  preserip- 


9.  Stouts  Mountain  Coal  & 
Coke  Co.  V.  Ballard,  195  Ala. 
283,  70  So.  172;  Miller  &  Lux 
V.  Enterprise  Canal  &  Land  Co., 
169  Cal.  415,  147  Pac.  567;  Whit- 
ing V.  Gaylord,  66  Conn.  337, 
50  Am.  St.  Rep.  87,  34  Atl.  85; 
Mitchell  V.  City  of  Rome,  49 
Ga.  19;  Gilmore  v.  DriscoU,  122 
Mass.  199,  207;  Turner  v.  Hart, 
71  Mich.  128,  15  Am.  St.  Rep. 
243,  38  N.  W.  890;  Roe  v.  Howard 
County,  75  Neb.  448,  5  L.  R.  A. 
N.  S.  831,  106  N.  W.  587;  Swett 
V.  Cutts,  50  N.  H.  439,  9  Am. 
Rep.  276;  Carlisle  v.  Cooper,  19 
N.  J.  Eq.  256;  Emery  v.  Raleigh 
&  G.  R.  Co.,  102  N.  C.  210,  11 
Am.  St.  Rep.  727,  9  S.  E.  139; 
Wimer  v.  Simmons,  ^7  Ore.  1, 
50  Am.  St.  Rep.  685,  39  Pac.  6; 
Williams  v.  Haile  Gold  Min.  Co., 
85  S.  C.  1,  7,  66  S.  E.  117,  1057; 
St.  Martin  v.  Skamania  Boom 
Co.,  79  Wa.sh.  393,  140  Pac.  355; 
Eells  V.  Chesapeake  &  O.  Ry. 
Co.,  49  W.  Va.  65,  87  Am.  St. 
Rep.  737,  38   S.   E.   479. 

So  it  has  been  held  that  pre- 
scription commenced  to  run  in 
favor  of  a  right  to  overflow 
another's  land,  not  upon  the 
erection  of  the  appliance  or  struc- 


ture, which  ultimately  caused  the 
overflow,  but  only  when  the  over- 
flow began.  Galbreath  v.  Hop- 
kins, 159  Cal.  297,  113  Pac.  174; 
Button  V.  Stoughton,  79  Vt.  361, 
65  Atl.  91;  Hume  v.  Grand 
Trunk  Western  R.  Co.,  192  Mich. 
225,    158    N.   W.    840. 

10.  Heilbron  v.  Fowler  Switch 
Canal  Co.,  75  Cal.  426,  7  Am.  St. 
Rep.  183,  17  Pac.  535;  Mott  v. 
Ewing,  90  Cal.  231,  27  Pac.  194; 
Bolivar  Mfg.  Co.  v.  Neponset 
Mfg.  Co.,  16  Pick.  (Mass.)  241; 
Dana  v.  Valentine,  5  Mete. 
(Mass.)  8;  Parker  v.  Foote,  19 
Wend  (N.  Y.)  309;  Tootle  v. 
Clifton,  22  Ohio  St.  247,  10  Am. 
Rep.  732;  Olney  v.  Fenner,  2  R. 
I.  211,  57  Am.  Dec.  711;  Mally  v. 
Weideusteiner,  88  Wash.  398, 
153    Pac.    342. 

In  Maine  there  is.  In  the  ab- 
sence of  actual  damage,  no  right 
of  action  on  account  of  the 
flowage  of  land,  the  common  law 
right  of  action  in  this  regard 
being  superseded  by  the  flowage 
statute.  Hathorne  v.  Stinson,  12 
Me.  183,  28  Am.  Dec.  167;  Seid- 
ensparger  v.  Spear,  17  Me.  123. 
35  Am.  Dec.  234.  And  there  a 
perceptible     amount     of     damage 


§  524] 


Pbescription. 


2057 


tive  period,  no  need  of  a  quantity  of  water  greater  than 
that  which  still  remains  in  the  stream. ^^  That  there  is 
sufficient  water  for  all  would  seem  to  have  its  chief 
significance  as  tending  to  exclude  any  inference  of  no- 
tice to  the  riparian  owner  of  the  adverse  user  of  the 
water,^^ 

The  question  whether  a  prescriptive  right  can  be  ac- 
quired as  against  a  reversioner  or  remainderman  would 
ordinarily  depend  upon  whether  the  user  is  such  as  to 
give  him  a  right  of  action  in  spite  of  the  fact  that  the 


seems  to  be  regarded  as  neces- 
sary even  in  other  cases.  Crosby 
V.  Bessey,  49  Me.  539,  77  Am. 
Dec.  271;  Lockwood  Co.  v.  Law- 
rence, 77  Me.  207,  52  Am.  Rep. 
763. 

11.  Bolivar  Mfg.  Co.  v.  Nepon- 
set  Mfg.  Co.,  16  Pick.  (Mass.) 
241;  Olney  v  Fenner,  2  R.  I.  211. 
57  Am  Dec.  711;  Messinger  s 
Appeal,  109  Pa.  285;  Cape  v. 
Thompson,  21  Tex.  Civ.  App.  681. 
But  occasionally  a  contrary  view 
appears  to  have  been  applied 
as  regards  prescription  againsi  a 
riparian  owner.  See  Anaheim 
Water  Co.  v.  Semi  Tropic  Water 
Co.,  64  Cal.  185,  30  Pac.  Q2-s; 
Meng  V.  Coffey,  67  Neb.  500,  60 
L.  R.  A.  713,  108  Am.  St.  Rep 
697,  93  N.  W.  713;  Redwater 
Land  &  Canal  Co.  v.  Jones,  27 
S.  D.  194,  l.'iO  N.  W.  85;  Martin 
V.  Burr — Tex.  Civ.  App. — ,  171 
S.  W.  1044.  See  the  query  in 
this  regard  in  Wiel  Water  Rights 
in  the  Western  States  (2nd  Ed.) 
380.  A  like  view  has  been  as- 
serted as  regards  a  right  to  take 
water  from  another's  spring,  to 
the  effect  that  it  was  not  estab- 
lished by  the  long  continued  tak- 
ing of  the  water,  if  the  owner  of 
the     spring    had     all     the     water 


which  he  needed.  Jobling  v.  Tat- 
tle, 75  Kan.  351,  9  L.  R.  A. 
(N.    S.)     960,    89    Pac.    699. 

As  against  a  prior  appropria- 
tor,  as  distinguished  from  a  ri- 
parian owner,  prescription  runs 
only  when  the  prescriptive  claiiii- 
ant  so  ases  the  water  as  actually 
to  deprive  the  prior  appropria- 
tor  of  some  part  of  the  water 
10  which  he  is  entitled  under 
his  appropriation  and  which  is 
needed  by  him.     Sgan  v.  Estrada. 

6  Ariz.  248.  56  Pac.  721;  Church 
V.  Stillwell,  12  Colo.  App.  43. 
54  Pac.   395;   Brossard  v.  Morgan. 

7  Idaho,  215,  61  Pac.  1031;  Tal- 
bott  V.  Butte  City  Water  Co., 
29  Mont.  17.  73  Pac.  1111;  Smith 
V.  Duff,  39  Mont.  102  Pac.  381; 
Ison  V.  Sturgill,  57  Ore.  109,  109 
Pac.  579,  110  Pac.  535;  Henderson 
V.  Gaforth.  34  S.  D.  441.  148  N. 
W.  1045;  Miller  v.  Wheeler,  54 
Wash.  429,  103  Pac  641;  Sander 
V  Bull,  76  Wash.  1.  135  Pac.  489. 

12.  So  it  is  said  in  Watts  v. 
Spencer,  51  Ore.  262,  94  Pac.  39 
that  there  is  no  adverse  user 
until  the  owner  is  deprived  of 
the  benefits  of  the  use  of  the 
water  in  such  a  substantial  man- 
ner as  to  know  that  his  right 
is   invaded. 


2058  Real  Property.  [§  524 

possession  is  in  anotlier.^-^  In  case  he  has  a  right  of 
action,  and  fails  to  exercise  it,^^  tlie  doctrine  of  prescrip- 
tion is,  it  seems,  applicable  as  against  him  as  if  he 
had  an  estate  in  possession,^^  unless  some  special 
method  is  provided  by  statute  to  prevent  the  acquisition 
of  such  a  right  by  prescription,  and  he  adopts  it.^® 

In  no  case,  it  seems,  does  the  existence  of  an  out- 
standing particular  estate  prevent  the  application  of 
the  doctrine  as  against  the  reversioner  or  remainder- 
man, if  such  particular  estate  was  created  after  the 
prescriptive  period  had  commenced  to  run.^"  And  the 
general  docrine  has  been  regarded  as  applying  in  spite 
of  an  outstanding  tenancy  from  year  to  year,  it  being 
said  that  the  owner  of  the  fee  ''had  the  right  to  bring 
suit  every  year.  "^^  But  as  to  this  last  case  there  might 
be  some  question,  if  the  tenancy  from  year  to  year  was 
created  before  the  commencement  of  the  prescriptive 
period,  and  if  the  user  were  not  such  as  to  give  a  right 
of  action  to  one  who  has  a  reversion  upon  a  tenancy  for 
years.  The  owner  of  the  fee  should  not  be  under  an 
obligation  to  bring  suit  if  this  could  be  done  only  by 
terminating  the  tenancy.^^ 

If  one  has  a  right  of  user  by  grant,  express  or 
implied,  his  exercise  of  such  user  is  to  be  imputed  to 
such  grant,^""^^  and  being  rightful,  no  prescriptive  right 
can  be  acquired  thereby.    And  so  one  who  has  a  way  of 

13.     See     Phillips     v.     Phillipai,  449,    31    N.    E.    635. 

186  Ala.   545,   65   So.   49;    Reimer  17,     Cross    v.    Lewis,    2    Barn. 

V     Stuber,    20    Pa.    St.    458;    Cun-  &    Cr.    686;    Ballard    v.    Demmon, 

ningham  v.  Dorsey,  3  W.  Va.  293.  156    Mass.     449,    31    N.    E.    635; 

Pentland  v.  Keep,  41  Wis.  490.  Ward    v.    Warren,    82    N    Y.    265; 

14     The  extent  to  which  a  re-  Stothart  v.  Hilliard,  19  Ont.  542. 

versioner  has  such  a  right  is  dis-  18.     Reimer    v.    Stuber,    20    Pa. 

cussed    in   2   Tiffany,   Landlord   &  St.  458. 

Tenant,  §  353.  19.     See   ante,   §   506,  note   99. 

15.  See  Gale,  Easements  (8th  20-21.  Atkins  v.  Boardman,  2 
Ed.)     215.  Mete.    (Mass.)    457,    37   Am.    Dec. 

16.  As  in  Massachusetts,  in  100;  Smith  v.  Hope  Min.  Co.,  18 
the  case  of  a  right  of  way.  Mont.  432,  45  Pac.  632;  Smith  v. 
See  Mass.  Rev.  Laws  p.  1260;  Wiggin,  52  N.  H.  112.  See  Horn 
Ballard    v.    Demmon,    156    Mass.  v.  Miller,  142  Pa.  St.  557- 


§  525]  Prescription.  2059 

necessity,  on  the  theory  of  implied  grant,--  cannot  ac- 
quire, by  the  user  of  the  way  for  the  prescriptive  period 
before  the  necessity  ceases,  a  right  to  the  way  after  the 
necessity  ceases,^^  But  even  though  one  has  a  valid 
grant  of  a  perpetual  right  of  user  in  particular  land,  he 
may,  by  a  user  of  the  same  land  in  a  manner  different 
from  that  named  in  the  grant,  or  to  a  greater  extent, 
acquire  an  easement  by  prescription  in  addition  to 
that  named  in  the  grant,-^  provided  the  different  or 
more  extended  user  is  known  to  the  landowner.--'"' 

The  user  of  a  public  highway  by  an  individual  can- 
not be  effective  as  against  the  owner  of  the  land  on 
which  the  highway  is  located,  so  as  to  create  a  prescrip- 
tive right  to  a  way  in  an  individual  using  the  highway, 
since  the  owner  of  the  land  cannot,  while  it  is  used  as  a 
highway,  prevent  passage  thereon  by  such  individual.-'^ 
But  such  user  may  become  adverse  upon  the  abandon- 
ment of  the  highway.- '^ 

§  525.  Continuity  of  user.  The  user  of  the  land, 
in  order  to  create  a  right  by  prescription,  must  be  con- 
tinuous for  the  prescriptive  period.-^     This  requirement 

22.  Ante,    §    363(c),  105   Pa.   St.   371;    Ruttan   v.   Win- 

23.  Ann   Arbor   Fruit    &   Vine-      ans,  5  Up.  Can.  C.  P.  379. 

gar  Co.  V.   Ann  Arbor  R.  R.  Co.,  25.     Gross  v.  Jones,  85  Neb.  77. 

136    Mich.    599,    66    L.    R.    A.    431,  122  N.  W.  681. 

99   N.   W.   869;    Rater   v.    Shuttle-  26.     Webster     v.      Lowell,     142 

field,   146   Iowa,   512,   44  L.   R.   A.  Mass.    324,    8    N.    E.    54;    Wheel- 

(N.  S.)   101,  125  N.  W.  235;   Saas-  er     v.     Clark.     58     N.     Y.     267: 

man  v.  Collins,  53  Tex.  Civ.  App.  Whaley  v.   Stevens,   27   S.  C.   549. 

71,    115    S.    W.    337.      Expressions  4    S.    E.    145. 

to    the    contrary    in    Johnson    v.  27.     Black  v.  O'Hara.   54   Conn. 

Allen,    ;i3    Ky.    L.    Rep.    621,    110  17,    5   Atl.    598. 

S.    W.    851,    are,    it    is    submittel,  28.     Johnson  v.   Lewis.  47  Ark. 

erroneous.  66.  2  S.  W.  329;    Smith  v.  Jlawk- 

24.  Atkins  v.  Bordman,  20  ins,  110  Cal.  122,  42  Pac.  453; 
Pick.  (Mass.)  291;  Hales  v.  At-  Peters  v.  Little,  95  Ga.  161  22 
lantic  Coast  Line  R.  Co.,  172  N.  S.  E.  44;  Bodfish  v.  Bodflsh,  lOR 
C.  104,  90  S.  E.  11;  Wheatley  v.  Mass.  317;  Dummer  v.  U.  S. 
Chrisman,  24  Pa  St.  298,  64  Am.  Gypsum  Co.,  1.53  Mich.  622.  117 
Dec.    657;     Gehman    v.    Erdman,  N.  W.  357;   Bonelli  v.  Blakcmore, 


2060 


Real  Peopekty. 


[§  525 


of  continuity  does  not  however  involve  any  necessity 
that  the  user  be  exercised  constantly  and  without  inter- 
mission,-^ and  it  is  sufficiently  continuous,  it  would 
seem,  if  it  is  exercised  with  such  frequency  and  con- 
stancj'  as  to  affect  the  landowner  with  notice  that  it  is 
being  exercised."'*'  Occasionally  it  has  been  said  that 
the  user  is  sufficiently  continuous  if  use  is  made  of  the 
land  whenever  there  is  any  necessity  for  such  use  on 
the  part  of  the  claimant.^  ^ 

A  right  of  way  may  be  acquired  by  prescription  al- 
though the  user  was  exercised  at  infrequent  inlervals,^^ 
and  a  preserij^tive  right  to  divert  water  from  a  natural 
watercourse  may  be  acquired  although  the  diversion  was 
not  constant."^^  Likewise  a  right  to  flood  another's  land 
to  a  certain  extent  may  exist  by  prescription  although 
the   flowage   is   at  times  diminished  or  interrapted  by 


66  Miss.  136,  14  Am.  St.  Rep. 
550,  5  So.  228;  NichoHs  v.  Went- 
worth,  100  N.  Y.  455.  3  N.  E. 
482;  Geer  v.  Durham  W'ater  Co.. 
127  N.  C.  349,  37  S.  E.  474; 
Watt  V.  Trapp,  2  Rich.  Law  (S. 
Car.)  136;  Ferrell  v.  Ferrell,  1 
Baxt.  TTenn.)  329:  Texas  West- 
ern Ry.  Co.  V.  Wilson.  83  Tex. 
153,  18  S.  W.  325;  Plimpton  v. 
Converse,     42    Vt.    712. 

29.  See  Kamer  v.  Bryant.  103 
Ky.  723.  46  S.  W.  14:  Dana  v. 
Valentine.    5    Mete.    (Mass.)     8. 

30.  Pollard  v.  Barnes,  2  Gush. 
(Mass.)  191;  Dummer  v.  U.  S. 
Gypsum  Co.,  153  Mich.  622.  117 
N.  W.  317;  Gilford  v.  Winni- 
piseogee  Lake  Co.,  52  N.  H.  262; 
Bodfish  V.  Bodfish.  105  Mass. 
317;  Hollins  v.  Verney,  13  Q.  B. 
D.  304:  Gale,  Easements  (8th 
Ed.)  186;  editorial  note  in  11 
Columbia  Law  Rev.  at  p.  674. 

31.  Hesperia  Land  &  Water 
Co.  V.  Rogers,  83  Cal.  10.  17  Am. 


St.  Rep.  209.  23  Pac.  196;  Myers 
V.  Berven,  166  Cal.  484,  137  Pac. 
260;  Cox  V.  Forrest,  60  Md.  74; 
Cornwell  Mfg.  Co.  v.  Swift,  89 
Mich.  503.  50  N.  W.  1001:  Dum- 
mer v.  United  States  Gypsum 
Co.,  153  Mich.  622,  117  N.  W. 
317;  Swan  v.  Munch.  65  Minn. 
500,  35  L.  R.  A.  743,  60  Am.  St. 
Rep.  491.  67  N.  W.  1022:  Lake 
Co.  V.  Young,  40  N.  H.  420;  Jar- 
man  V.  Freeman,  80  N.  J.  Eq. 
81.  83  Atl.  372:  Garrett  v.  Jack- 
son, 20  Pa.  St.  331;  Messinger's 
Appeal,  109  Pa.  St.  285,  4  Atl. 
162;  Brand  v.  Lienkaemper,  72 
Vvash.   547,   130   Pac.   1147. 

32.  Cox  v.  Forrest,  60  Md. 
74;  Bodfish  v.  Bodfish.  105  Mass. 
317;  Winnipiseogee  Lake  Co.  v. 
Young,  40  N.   H.  420. 

33.  Lane  v.  Miller,  27  Ind. 
534;  McDougal  v.  Lame,  39  Ore. 
212;  64  Pac.  864;  Messinger's 
Appeal,  109  Pa.  285.  4  Atl.  162; 
Jordan  v.  Lang,  22   S.  C.  159. 


525] 


Pkescription", 


2061 


reason  of  a  lack  of  water,  a  need  of  repairing  the  dam, 
or  other  temporary  condition."^^ 

Diversity  of  user.    A  user  of  another's  land  in 


one  mode  for  part  of  the  prescriptive  period  can  not 
be  added  to  a  user  in  another  mode  for  the  balance  of 
the  period,  in  order  to  make  up  the  user  necessary  for 
the  creation  of  a  prescriptive  right.  For  instance,  it 
the  course  and  place  of  termination  of  a  di'ain  are 
changed,  the  user  cannot  be  regarded  as  being  the  same 
user  before  and  after  the  change,  for  the  purpose  of 
conferring  a  prescriptive  right. ^^  So  it  has  been  decided 
that  an  elevated  railway  structure  substituted  for  an- 
other structure  of  a  similar  but  less  burdensome  char- 
acter could  not  be  regarded  as  involving  the  same  in- 
fringement  of  an  abutting   owner's   rights.^"     And  the 


It  has  been  said  that  there 
must  at  least  be  an  annual 
flowage  of  land  in  order  to  give 
a  prescriptive  right.  Turner  v. 
Hart,  71  Mich.  128,  15  Am  St. 
Rep.  243,  38  N.  W.  890;  Gleason 
v.  Tuttle,  46  Me.  288.  See  Wood 
V.  Kelley,  30  Me.  47;  Crosby  v. 
Bessey,  49  Me.  539. 

34.  Cornwell  Mfg.  Co.  v. 
Swift,  89  Mich.  503,  50  N.  W. 
1001;  Reason  v.  Peters,  148 
Mich.  532,  112  N.  W.  117;  Swan 
V.  Munch,  65  Minn.  500,  60  Am. 
St.  Rep.  491,  67  N.  W.  1022; 
Alcorn  v.  Sadler,  71  Miss.  634, 
42  Am.  Rep.  484,  14  So.  444; 
Winnipiseogee  Lake  Co.  v.  Young, 
40  N.  H.  420;  Carlisle  v.  Cooper, 
21  N.  J.  Eq.  576;  Ely  v.  State, 
199  N.  Y.  213,  92  N.  E.  629; 
Gerenger  v.  Summers,  24  N.  C. 
229;  Haag  v.  De  Lorme,  30  Wis. 
591. 

35.  Cotton  v.  Pocasset  Mfg. 
Co.,  13  Mete.  (Mass.)  429;  Totel 
V.   Bonnefoy,   123   111.    653,   5   Am. 

2  R.  P.— 55 


St.  Rep.  570,  14  N.  E.  687.  But 
it  has  been  decided  that  there 
is  no  interruption  of  the  user 
of  water  from  a  stream  on  an- 
other's land  by  reason  of  a 
change,  of  not  more  than  200 
yards,  as  regards  the  point  on 
the  stream  at  which  the  water 
is  taken.  Malley  v.  Weidenstein- 
er,  88  Wash.  398,  153  Pac.  342. 
This  would  seem  questionable, 
since  the  change  would  involve 
the  location  of  the  aqueduct 
along  an  entirely  different  line. 
The  authorities  cited  concern 
merely  a  right  to  divert  water 
based  on  prior  appropriation, 
not   on    prescription. 

36.  American  Bank-Note  Co.  v. 
New  York  El.  R.  Co..  129  N.  Y. 
252,  29  N.  E.  302.  But  a  change 
in  the  motive  power  used  on 
the  elevated  railroad  and  an 
increase  in  the  length  of  the 
trains  was  held  to  be  immaterial. 
Bremer  v.  Manhattan  Ry.  Co., 
191  N.  Y.  333,  84  N.  E.  59. 


2062 


Real,  Property. 


[§  525 


use  of  an  additional  track  for  ''drilling"  cars  was  held 
to  involve  a  user  different  from  that  made  of  the  tracks 
previously  existing.-'"  On  the  other  hand  a  change  in 
the  location  of  a  dam  by  which  land  of  another  is  over- 
flowed has  been  held  not  to  involve  a  change  of  user,  if 
the  same  land  is  overflowed  to  the  same  extent,"^  and 
a  change  in  the  mode  of  utilizing  the  water  which  is 
diverted  from  a  stream  has  likewise  been  regarded  as 
immaterial.-'*'  Likewise,  as  previously  indicated,^*'  a 
change  of  user  does  not  occur  merely  because  the  extent 
of  the  flowage  of  land  varies  from  time  to  time. 

It  is  generally  agreed,  at  least  in  this  country,  that 
to  acquire  a  right  of  way  by  prescription,  the  passage 
during  the  prescriptive  period  must  have  been  sub- 
stantially along  one  line   of  travel,^  ^   though  it  is   oc- 


37.  Pennsylvania  R.  Co.  v. 
Thompson,  45  N.  J.  Eq.  870,  14 
Atl.   897,   19  Atl.  622. 

38.  Stackpole  v.  Curtis,  32  Me. 
383.  See  Emery  v.  Raleigh  & 
G.  R.  Co.,  102  N.  C.  209,  11  Am. 
St.  Rep.  727,  9  S.  E.  139.  Com- 
pare Branch  v.  Doane,  17  Conn. 
402. 

39.  Stein  v.  Burden,  24  Ala. 
130,  60  Am.  Dec.  453;  Gallaher 
V.  Montecito  Valley  Water  Co.. 
101  Cal.  242,  35  Pac.  770;  Bel- 
knap V.  Trimble,  3  Paige  (N.  Y.) 
577;  Smith  v.  Adams,  6  Paige 
(N.  Y.)  435;  Whitehan  v.  Brown, 
80  Kan.  297,  102  Pac.  783;  3 
Kent's  Comm.  443. 

40.  A7ite,  this  section,  note  34. 
And  it  has  been  held  that  the 
right,  by  prescription,  to  main- 
tain a  dam  at  its  original  height 
is  not  affected  by  the  fact  that 
the  flash  boards  were  sometimes 
carried  away  by  water  and  ice, 
or  were  removed  to  prevent  them 
from  being  carried  away,  or  for 
other     reasons.       Tosini     v.    Cas- 


cade Milling  Co.,  22  S.  D.  377, 
117  N.  W.  1037,  See  also,  as  to 
flash  boards,  Carlisle  v.  Cooper, 
21  N.  J.  Eq.  576;  Hall  v.  Augs- 
bury,  46  N.  Y.  622;  Ely  v. 
State,  199  N.  Y.  213,  92  N.  E. 
629. 

41.  Johnson  v.  Lewis,  47  Ark. 
66,  2  S.  W.  329;  Peters  v.  Little, 
95  Ga.  151,  22  S.  E.  44;  Poole  v. 
Bacon,  238  111.  305,  87  N.  E. 
320;  Bowman  v.  Wickliffe,  15  B. 
Mon.  (Ky.)  99;  Hoyt  v.  Ken- 
nedy, 170  Mass.  54,  48  N.  E. 
1073;  Garnett  v.  Slater.  56  Mo. 
App.  207;  Holmes  v.  Seeley,  19 
Wend.  (N.  Y.)  507;  Bushey  v. 
Santiff,  86  Hun  (N.  Y.)  384, 
33  N.  Y.  Supp.  473;  Nellis  v. 
Countryman,  153  N.  Y.  App.  Div. 
500,  138  N.  Y.  Supp.  246;  Ar- 
nold V.  Cornman,  50  Pa.  St. 
361;  Turnbull  v.  Rivers,  3  Mc- 
Cord,  Law  (S.  C.)  131,  15  Am. 
Dec.  622;  Sassman  v.  Collins, 
53  Tex.  Civ.  App.  71,  115  S. 
W.  337;  Lund  v.  Wilcox,  34  Utah, 
205,     97     Pac.     33;     Plimpton     v. 


§  526]  Presckiption.  2063 

casionally   said  that   a   slight   divergence,  especially  if 
necessitated  by  local  conditions,  is  immaterial.- 

The  fact  that  the  nse  is  increased  during  the 
prescription  period  does  not,  provided  the  nature  of  the 
nser  remains  unchanged,  preclude  the  establishment  of 
a  right  corresponding  to  the  original  user  as  it  existed 
before  the  change  was  made,^'^  but  there  is  no  pre- 
scriptive right  corresponding  to  the  increased  user,^^ 
except  in  so  far  as  the  increased  user  itself  continues 
for  the  prescriptive  period.^^ 

§  526.  Cessation  of  adverse  character.  Although 
the  user  of  another's  land  in  a  particular  way  continues 
for  the  whole  of  the  prescriptive  period,  no  right  is  ac- 
quired thereby  if  the  user  loses  its  adverse  character 
before  the  period  expires.  This  it  may  do  by  reason  of 
the  fact  that  the  possession  of  the  servient  tenement 
becomes  united  with  that  of  the  dominant  tenement."*" 
Or  it  may  occur  that  the  person  exercising  the  user  in 
some  way  recognizes  the  right  of  the  owner  of  the  land 

Converse,   44   Vt.   158;    Crosier   v.  191    N.    Y.    3;53,    84   N.    E.    59. 
Brown,   66   W.   Va.   273,   66    S.   E.  44.     Mississippi     Mills     Co.     v. 

326.     But  there  are  in  Wimbledon  Smith,   69   Miss.   297,    30   Am.    St. 

etc.  Conservators  v.  Dixon,  1  Ch.  Rep.    546,    11    So.    26;     Matthews 

Div.  363  dicta  to  the  contrary.  v.  Stillwater  Gas  &  Electric  Light 

42.  Cheney  v.  O'Brien,  69  Cal.  Co.,  63  Minn.  493,  65  N.  W.  947; 
199.  10  Pac.  479;  Gentleman  v.  Smith  v.  City  of  Sedalia,  152  Mo. 
Soule.  32  111.  271,  83  Am.  Dec.  283,  48  L.  R.  A.  711,  53  S.  W. 
264;  Talbott  V.  Thorn,  91  Ky.- 417,  907;  Prentice  v.  Geiger,  74  N. 
16  S.  W.  88;  Salmon  v.  Martin,  Y.  341;  Boynton  v.  Longley,  19 
156  Ky.  309.  160  S.  W.  1058;  Nev.  69,  3  Am.  St.  Rep.  781. 
Moll  V.  Hagerbaumer,  98  Neb.  6  Pac.  437;;  McCallum  v.  Ger- 
555.  153  N.  W.  560:  Bolton  v.  mantown  Water  Co.,  54  Pa.  St. 
Murphy,  41  Utah,  591,  127  Pac.  40,  93  Am.  Dec.  656;  Shearer  v. 
335;  Walton  v.  Knight,  62  W.  Va.  Hutterische  Bruder  Gemeinde,  28 
223.    58    S.    E.    1025:    Warren    v.  S.    D.   509.    134    N.   W.   63. 

Van  Norman,    29   Ont.   84.  45.     McDonnell    v.    Hufflne,    44 

43.  Shaughnessey  v.  Leary,  162  Mont.  411.  120  Pac.  792;  Bolton 
Mass.  108,  38  N.  E.  197;  Bald-  v.  Murphy,  41  TTtah.  .^91,  127  Par. 
win  V.  Calkins,  10  Wend     (N.  Y.)  335. 

167:   Bremer  v.  Manhattan  R.  Co.,  4C.     Avtr.   §    r)24.   note   20. 


2064 


Real  Property. 


[§  527 


to  stop  the  nser,'''^  as  when  he  asks  permission  of  the 
latter.^^  Whether  such  a  recognition  is  to  be  regardea 
as  involved  in  an  offer  on  the  part  of  the  person  exer- 
cising the  user  to  purchase  the  right  of  user  would  ap- 
pear to  be  a  question  of  fact  in  the  particular  case,^^ 
§  527.  Interruption  by  landowner.  That  the 
owner  of  the  land  interposes  physical  obstacles  to  the 
exercise  of  the  user,  to  an  extent  sufficient  to  render  it 
impossible,  has  been  regarded  as  precluding  the  ac- 
quisition of  a  prescriptive  right.^°  So  one  cannot  ac- 
quire a  right  of  way  by  prescription  if  the  lando^\Tier 
places  a  fence  or  other  structure  so  as  to  prevent  pas- 
sage,^^  and  it  has  been  decided  that  no  right  to  divert 
water  accrues  by  lapse  of  time  if  the  landowner  pre- 
vents, even  though  only  temporarily,  the  diversion  of 
water.^^  Such  action  on  the  part  of  the  landowner 
necessarily  stops  the  user,  the  continuity  of  which  is 
essential  to  the  application  of  the  doctrine  of  prescrip- 


47.  Sumner  v.  Tileston,  7 
Pick.  (Mass.)  198;  Colvin  v. 
Burnet,  17  Wend.  (N.  Y.)  569; 
Perrin  v.  Garfield,  37  Vt.  304; 
Wasatch  Irrigation  Co.  v.  Fulton, 
23  Utah,  466,  65  Pac.  205; 
Strong  V.  Baldwin,  137  Cal.  432, 
70  Pac.  288. 

48.  Weed  v.  Keenan,  60  Vt.  74, 
6  Am.   St.  Rep.   93,  13   Atl.   804. 

49.  See  Watkins  v.  Peck,  13 
N.  H.  360,  40  Am.  Dec.  156; 
Kana  v.  Bolton,  36  N.  J.   Eq.   21. 

50.  In  Rollins  v.  Blackden, 
112  Me.  459,  Ann  Cas.  1917A 
875,  92  Atl.  521,  it  was  held 
that  the  prescriptive  user  of  the 
water  from  a  well  on  another's 
land  was  interrupted  by  the  lat- 
ter's  grant  to  a  third  person  of 
a  right  to  take  water.  Why 
this  should  be  so  is  not  explain- 
ed. 

51.  Pollard     v.     Rebman,     162 


Cal.  633,  124  Pac.  235;  Sears  v. 
Hayt,  37  Conn.  406;  Barker  v. 
Clark,  4  N.  H.  380,  17  Am.  Dec. 
428;  Brayden  v.  New  York,  N. 
H.  &  H.  R.  Co.,  172  Mass.  225. 
51  N.  E.  1081;  Jackson  v.  Cody, 
(Tex.  Ch.),  63  S.  W.  302;  Cun- 
ningham V.  San  Saba  County,  11 
Tex.  Civ.  App.  557,  32  S.  W.  928, 
33  S.  W.  892;  Morris  v.  Blunt, 
49  Utah,  243,  161  Pac.  1127.  See 
Wooldridge  v.  Coughlin,  46  W. 
Va.    345,    33     S.    W.    233. 

52.  Bree  v.  Wheeler,  129  Cal. 
145,  61  Pac.  782;  Authors  v. 
Bryant,  22  Nev.  242,  38  Pac.  439; 
Wasatch  Irrigation  Co.  v.  Ful- 
ton, 23  Utah,  466,  65  Pac.  205; 
Smith  v.  North  Canyon  Water 
Co.,  16  Utah,  194,  52  Pac.  283. 
But  see,  as  to  the  character  of 
the  interruption  necessary.  Gard- 
ner V.  Wright,  49  Ore.  609,  91 
Pac.    286. 


§  527]  Pkescriptiox.  2065 

tion,  and  even  a  merely  temporary  stoppage  or  sus- 
pension, resulting  from  the  act  of  the  landowner,  has 
a  legal  etfect  different  from  a  like  stoppage  or  suspen- 
sion which  is  purely  voluntary,  in  as  much  as  it  indicates 
a  lack  of  that  acquiescence  by  the  landowner  in  the  user, 
on  which  acquiescence  alone  the  presumption  of  a  grant 
can  be  based. ^-^  It  has  been  said,  however,  that  the 
occasional  interruption  of  passage  across  the  land  by  the 
storage  thereon  by  the  landowner  of  lumber  and  car- 
riages does  not  prevent  the  acquisition  of  a  prescrip- 
tive right  of  passage,  if  such  interruption  were  merely 
casual,  or  accompanied  by  acts  recognizing  a  right  of 
passage.^^ 

It  has  been  decided  that  the  interruption  by  the 
landowner  of  the  user,  if  secret  and  by  stealth,  as  when 
water  appliances  or  structures  are  secretly  destroyed  by 
him,  will  not  prevent  the  acquisition  of  the  prescriptive 
right.^*  This  is  based  on  the  analogy  of  the  law  of  ad- 
verse possession  of  land,  by  which  a  secret  re-entry  does 
not  prevent  the  running  of  the  statute.  The  analogy 
is,  however,  not  entirely  satisfactory.  It  the  owner  of 
land  re-enters  on  the  land  by  stealth,  the  possession  of 
the  wrongdoer  is  regarded  as  continuing,  while  the  mere 
user  of  another's  land  cannot  well  be  regarded  o.s  con- 
tinuing, when  it  has  been  actually  stopped  by  the 
landowner,  w^hether  this  was  done  secretly  or  openly. 
Moreover  the  interruption  of  the  user,  although  origi- 
nally clandestine,  must  eventually  become  known  to  the 
other  party,  except  in  the  rare  instance  when  tlie  land- 
owner voluntarily  repairs  the  injury  which  he  has 
caused,  while  the  re-entry  of  the  landowner  on  land  in 
another's  wrongful  possession  may,  if  temporary  merelj', 
continue  unknown  to  the  latter. 

It  has  been  said  that  an  interruption  of  the  user  by 
a  bird  person  is  immaterial. ^^^     This  is  presumably  so. 

52a.     See      editorial      note  20  54. 

Harv.    Law    Rev.    317.  54.     Brattain    v.    Conn,    50    Ore. 

53.     Plimpton    v.    Converse,  42  156,    91    Pac.    458. 

Vt.     712.       And     see    "Webster  v.  54a.   Gardner  v.  Wright,  4!t  Ore. 

Lowell,    142    Mass.    324,    8    N.  E.  609,     91     Pac.    28ti;     Dorntree     v. 


2066  Real  Property.  [§  528 

That  is,  such  interruption  does  not  serve  to  indicate  any 
lack  of  acquiescence  in  the  user  on  the  part  of  the 
landowner,  and  does  not,  for  that  reason,  prevent  the 
establishment  of  a  right  by  prescription.  It  is  con- 
ceivable, however,  that  the  interruption  by  a  third  person 
may  be  so  prolonged  as  to  deprive  the  user  of  the  ele- 
ment of  continuity,  or  that  after  an  interruption  has 
occurred  b}^  reason  of  a  third  person's  destruction  of 
appliances,  no  attempt  is  made  to  replace  the  appli- 
ances so  as  to  continue  the  user. 

§    528.    Protests    and   interference   by   landowner. 

Applying  the  theory  that  what  makes  a  continued  user 
effective  to  confer  a  corresponding  right  is  the  acquies- 
cence of  the  owner  in  such  user,  as  raising  a  presumption 
of  a  grant,  it  would  seem  to  be  sufficient  to  exclude  such 
presumption  that  the  owner  of  the  land  has  protested 
against  the  user  at  any  time  during  the  prescriptive 
period,  and  some  courts  have  taken  this  view.^-^  The 
weight  of  authority  is",  however,  perhaps  the  other  way, 
that  mere  remonstrances  or  protests  by  the  lando^vner 
will  not  prevent  the  acquisition  of  a  right  by  prescrip- 
tion, in  the  absence  of  any  physical  interference  with 
the  user,  or  legal  proceedings  based  thereon.^''     These 

Lyons,   224   Mass.   256,   112   N.   E.  565;     Reed    v.    Garnett,    101    Va. 

610;    Mclntire   v.    Talbot,    62    Me.  47,    43    S.    E.    184;    Woolridge    v. 

312.     So  as  to  mere  efforts  by  a  Coughlin,    46    W.    Va.    345,    33    S. 

stranger    to    interrupt.      Mclntire  E.  233;    Crosier  v.  Brown,  66  W. 

V.    Talbot,    62   Me.   312.  Va.    273,    25    L.    R.    A.     (N.    S.) 

55.     Stillman     v.     White     Rock  174,     66     S.     E.     326;     Gwinn    v. 

Mfg.  Co.,  3  Woodb.  &  M.  538,  Fed.  Gwinn,   77   W.   Va.   281,   87    S.    E. 

Cas.  No.  13446;   Chicago  &  N.  W.  371.      See    also    Conner    v.    Wood- 

Ry.    Co.    V.    Hoag,    90     111.    339;  fill,  126  Ind.  85,  22  Am.  St.  Rep. 

DartneU  v.   Bidwell,  115  Me.   227,  568,     25     N.     E.     876;     Tracy     v. 

98    Atl.    743;    Powell    v.    Bagg,    8  Atherton,  36  Vt.  503. 

Gray    (Mass.)    441,    69    Am.    Dec.  56.     Cox     v.     Clough,     70     Cal. 

262;   Lehigh  Valley  R.  Co.  v.  Mc-  345,   11   Pac.   732;    Connor  v.   Sul- 

Farlan,   30  N.  J*.   Eq.   180;    Work-  livan,    40    Conn.    26;    Lehigh    Val- 

man  v.  Curran,  89  Pa.  St.  226;  ley  R.  Co.  v.  McFarlan,  43  N. 
Nichols  V.   Aylor,  7   Leigh    (Va.) 


529] 


Prescription. 


2067 


latter  cases  follow,  in  this  regard,  the  analogy  of  the 
decisions  with  reference  to  the  statutes  limiting  the 
period  for  the  recovery  of  land. 

That  the  owner  of  the  land,  during  the  prescrip- 
tive period,  institutes  a  legal  proceeding  on  account  of 
the  user  of  the  land  by  another,  prevents  the  latter 
from  acquiring  the  right  by  lapse  of  time,^"  provided 
at  least  the  proceeding  is  conducted  by  the  landowner 
to  a  successful  conclusion."* 

§  529.  Tacking.  As  successive  adverse  possessions 
of  land  by  different  persons  may  be  tacked  in  order  to 
make  up  the  statutory  period,  so  successive  adverse 
users  by  different  persons  may  be  tacked  for  tlie  same 
purpose,^^  provided  there  is  a  privity  or  contractual 
connection  between  them.'^°  There  is  sufficient  privity 
for  this  purpose,  it  would  seem,  when  the  user  is  exer- 
cised, for  the  benefit  of  neighboring  land,  by  successive 


J.  L.  605;  Morris  Canal  &  Bank- 
ing Co.  V.  Diamond  Mills  Paper 
Co.,  73  N.  J.  Eq.  414,  75  Atl. 
1101,  aff'g  71  N.  J.  Eq.  481,  64 
Atl.  746;  Dickinson  v.  Delaware, 
L.  &  W.  R.  Co.,  87  N.  J.  L.  264, 
93  Atl.  703;  Oregon  Const.  Co. 
V.  Allen  Ditch  Co.,  41  Ore.  209, 
69  Pac.  455;  Okeson  v.  Patterson, 
29  Pa.  St.  22;  McGeorge  v.  Hoff- 
man, 133  Pa.  St.  381,  19  Atl.  413; 
Jordan  v.  Lang,  22  S.  C.  159; 
Ferrell  v.  Ferrell,  1  Baxt. 
(Tenn.)     329;     Angus    v.    Dalton, 

3  Q.    B.    Div.    93,    per    Lush,    J., 

4  Q.  B.  Div.,  per  Thesiger  & 
Cotton,  L.  J.  J.  See  Rollins  v. 
Blackden,  112  Me.  459,  Ann.  Cas. 
1917A    875,    92    Atl.    521. 

Temporary  cessation  of  the  use, 
following  upon  demand  that  the 
use  be  stopped,  has  been  refer- 
red to  as  tending  to  show  that 
the  use  was  permissive.  St. 
Martin    v.    Skamania    Boom    Co., 


79  Wash.  393,  140  Pac.  355; 
Eaton  V.  Swansea  Water  Works 
Co.,    17   Q.    B.    267. 

57.  Alta  Land  &  Water  Co.  v. 
Hancock,  85  Cal.,  219,  20  Am. 
St.  Rep.  217,  24  Pac.  645;  Bunten 
v.  Chicago,  R.  I.  &  P.  Ry.  Co., 
50  Mo.  App.  414;  Workman  v. 
Curran,  89  Pa.  St.  226;  Cobb  v. 
Smith,    38    Wis.    21. 

58.  Postlethwaite  v.  Payne,  8 
Ind.  104;  Harmon  v.  Carter. 
(Tenn.),  59  S.  W.  656. 

59.  Bradley's  Fish  Co.  v.  Dud- 
ley, 37  Conn.  136;  Ross  v.  Thomp- 
son, 78  Ind.  90;  Sargent  v. 
Ballard.  9  Pick.  (Ma'^s.)  2.t1: 
Matthys  v.  First  Swedish  Church 
of  Boston,  223  Mass.  544.  112 
N.  E.  228;  Leonard  v.  Leonard. 
7  Allen  (Mass.)  277;  Dodge  v. 
Stacy.    39   Vt.    558. 

60.  Holland  v.  Long,  7  Gray 
(Mass.)  486;  Bryan  v.  City  of 
East   St.   Louis,   12   IH.  App.   390. 


2068  Real  Property.  [^  530 

owners  or  possessors  of  such  land,  between  whom  there 
exists  some  legal  relation  other  than  that  of  disseisor 
and  disseisee.*^ ^  One  decision,*'^  apparently  to  the 
effect  that  a  grantee  of  land  cannot  tack  his  grantor's 
user  of  neighboring  land  unless  the  conveyance  to 
him  specifically  mentions  such  inchoate  right,  is  based 
on  a  misapplication  of  authorities  to  the  effect  that 
there  is  no  breach  of  a  covenant  of  title  by  reason  ot 
the  failure  of  an  easement  supposed  to  be  appurtenant 
to  the  land  conveyed  unless  such  easement  was  specfi- 
cally  mentioned  in  the  conveyance. 

§  530.  Personal  disabilities.  The  statutory  excep- 
tions in  the  statutes  of  limitations  in  favor  of  persons 
under  legal  disability  are  applied  by  analogy,  in  the 
case  of  prescription,  when  the  owner  of  the  land  is 
under  disability,  and  they  are  usually  applied  to  the 
same  extent,  and  subject  to  the  same  restrictions.^" 
So,  while  the  statutory  period  does  not  begin  to  run 
during  the  disability  of  the  landowner,  if  this  existed 
when  the  right  of  action  on  account  of  the  user  of  the 
land  accrued,^^  a  disability  thereafter  arising  will  not, 
by  the  weight  of  authority,  extend  the  statutory 
period,^^  and  one  disability  cannot  be  tacked  to  an- 
other.*'^ 

61.  See  ante,  §  508.  Edson     v.      Munsell,      10      Allen 

62.  Durkee    v.    Jones,    27    Cal.       (Mass.)    557. 

59,    60    Pac.    618.  65.     Tracy   v.   Atherton,    36   Vt. 

63.  Occasionally  the  excep-  503;  Mebane  v.  Patrick,  46  N.  C. 
tion  in  favor  of  a  person  under  23;  Wallace  v.  Fletcher,  30  N.  H. 
disability  is  based  on  the  theory  434;  Edson  v.  Munsell,  10  Allen 
that  a  grant  by  one  who  has  (Mass.)  557;  State  v.  Macy,  72 
no  power  to  make  a  grant  can  Mo.  App.  427.  Contra,  Lamb  v. 
not  be  presumed.  Watkins  v.  Crosland,  4  Rich.  Law  (S.  C.) 
Peck,  13  N.  H.  360;  McKinney  536;  Thorpe  v.  Corwin.  20  N.  J. 
V.  Duncan,  121  Tenn.  265,  118  L.  311.  See  Melvin  v.  Whiting. 
S.    W.    683.  13    Pick.    (Mass.)    184,   185. 

64.  Lamb       v,       Crosland,       4  66.     Reimer    v.    Stuber,    20    Pa. 
Rich.  Law  (S.  C.)   536;   Melvin  v.  St.   458,  59  Am.   Dec.   744. 
Whiting,    13    Pick.    (Mass.)     185: 


§  531]  Presceiption.  2069 

§  531.  Nature  and  extent  of  prescriptive  right. 
That  the  nature  and  extent  of  a  prescriptive  riglit 
are  measured  by  the  character  of  the  user  in  wliich  it 
originated  is  generally  recognized,*^'  but  the  applica- 
tion of  this  rule  frequently  involves  considerable  prac- 
tical difficulties.  If  it  were  applied  with  absolute 
strictness,  the  right  acquired  would  frequently  be  of 
no  utility  whatsoever.  A  right  of  way,  for  instance, 
would,  as  has  been  judicially  remarked,*'^  be  available 
for  use  only  by  the  people  and  the  vehicles  which  have 
passed  during  the  prescriptive  period.  But  the  rule 
is  not  applied  with  absolute  strictness.  "As  in  the  case 
of  a  grant  the  language  is  to  be  construed  in  the  light 
of  the  circumstances,  so  in  the  case  of  prescription 
the  use  is  to  be  looked  at  in  the  same  way.  The  nature 
of  the  right  is  not  to  be  determined  by  the  actual 
proved  use  alone,  but  by  that  in  connection  with  the 
circumstances. '  '^^ 

There  is  obviously  no  difficulty  when  a  right  of 
user  is  asserted  entirely  different  in  its  nature  from 
the  user  during  the  prescriptive  period.  If,  for  in- 
stance, one  has  used  another's  land  for  purposes  of 
passage  only,  he  can  acquire  by  such  user  no  right  to 
overflow  it,  and  if  he  has  used  it  merely  for  the  pur- 
pose of  an  aqueduct  he  can  thereby  acquire  no  right 
to  use  it  for  a  drain.  But  if  one  has  used  another's 
land  for  a  drain  from  a  house  upon  his  land,  the  ques- 
tion whether  he  may  build  another  house  upon  his 
land    and    discharge    sewage    from    both    the    houses 

67.     Wright   v.    Moore.   38    Ala.  Salem  Flouring  Mills  Co.,  13  Ore. 

593,  82  Am.  Dec.  731;    Lawton  v.  28,    7    Pac.    53,    15    Ore.    581,    16 

Herrick,    83    Conn.    417,    76    Atl.  Pac.  426;   Elliott  v.  Rhett,  5  Rich. 

986;     Postlethwaite    v.    Payne,    8  L.    (S.  C.)    405,  57  Am.  Dec.  750; 

Ind.    104;    Middlesex    Co.    v.    City  Shrewsbury     v.     Brown,     25     Vt. 

of   Lowell,    149   Mass.    509,    21    N.  197. 

E.   872;    Harvey  v.    Illinois   Cent.  68.     Cowling    v.     Higgenson,    4 

R.  Co.,  Ill  Miss.  835,  72  So.  723;  Mees.   &  W.   245   per   Parke,   B. 

American  Bank-Note   Co.  v.  New  69.     Baldwin    v.    Boston    &    M. 

York     El.     R.     Co..     129     N.     Y.  R.    R.,    181    Mass.    166,    63    N.    E. 

252.    29    N.    E.    302;     Tucker    v.  428,    per    Hammond.    J. 


2070  Eeal  Property.  [§  531 

through  the  drain  is  a  more  difficult  one,  and  similar 
questions  as  to  whether  the  right  acquired  by  a  pre- 
scriptive user  would  be,  in  the  particular  case,  suf- 
ficient to  justify  a  slight  extension  of  the  user,  or  a 
user  in  a  slightly  different  manner,  will  readily  sug- 
gest themselves.  The  question  appears  ordinarily  to 
be,  what  are  the  nature  and  extent  of  the  right,  the 
existence  of  which  is  to  be  presumed  from  the  user 
during  the  prescription  period.'^"  Does  it,  in  the 
particular  case,  include  a  right  of  user  which  differs  in 
degree  but  not  in  kind  from  the  former  user  and,  con- 
ceding that  it  does,  what  constitutes  a  difference  in 
degree  merely!  Occasionally,  when  there  has  been 
a  change'  or  increase  of  user  since  the  prescriptive 
period,  the  court  undertakes  to  determine  tne  per- 
missibility of  such  new  user  by  the  consideration 
whether  it  involves  an  increase  in  the  burden  upon  the 
servient  tenement, '^^  Such  a  consideration,  however, 
would  seem  to  be  material  merely  in  determining  the 
scope  of  the  prescriptive  right.'-  A  user  which  in- 
volves a  substantial  increase  of  burden  upon  the  ser- 
vient tenement  should  not  ordinarily  be  regarded  as 
within  the  prescriptive  right,  since  such  increased 
burden  was  not  what  the  landowner  acquiesced  in. 
But,  as  before   indicated,  the  nature  or  circunistances 

70.  See  Cowling  v.  Higgenson,  Crow,  .32  Pa.  398;  Atty.  Gen.  v. 
4  Mees.  &  W.  245;  Prentice  v.  City  of  Grand  Rapids,  175  Mich. 
Geiger,  74  N.  Y.  341;  Jones  v.  503,  50  L.  R.  A.  (N.  S.)  473,  141 
Crow,    32    Pa.    398.  N.    W.    890;    Fansler    v.    City    of 

71.  Wimbledon  etc.  Conserva-  Sedalia,— (Mo.)— 176  S.  W.  1102. 
tors  V.  Dixon,  1  Ch.  Div.  362;  A  prescriptive  right  to  main- 
Simons  V.  Munch,  115  Minn.  360.  tain  a  dam  to  sluice  logs,  a  tem- 
132  N.  W.  321.  This  criterion  porary  use,  does  not,  it  has 
of  an  increase  of  burden  has  been  held,  involve  a  right  to 
been  applied  in  several  cases  in  maintain  it  for  permanent  use 
connection  with  the  pollution  of  in  connection  with  a  saw  mill, 
a  stream.  Mclntyre  Bros.  v.  Simons  v.  Munch,  115  Minn. 
McGavin,  L.  R.    (1893)    App.  Cas.  360,   132   N.  W.  321. 

268:      Mississippi     Mills     Co.     v.  72.     See   the   thoughtful   discus- 

Smith,  69  Miss.  299,  30  Am.  St.  sion  in  8  Columbia  Law  Review 
Rep.    546,    11    So.    26;     Jones    v.      at  p.   402, 


§  531] 


Prescription. 


2071 


of  the  user  may  be  such  that  the  landowner  could  have 
seen  that  a  mere  change  in  details  of  the  user'^  would 
increase  the  burden  upon  his  land,  and  he  is  accord- 
ingly to  be  regarded  as  having  acquiesced  in  the  user 
as  thus  subject  to  possible  extension. 

It  would  seem  that  a  user  during  the  prescriptive 
period  which  actually  burdens  but  a  limited  portion  of 
space  on  another's  land  gives  a  right  to  burden  that 
space  only.  For  instance,  a  user  of  land  for  purposes 
of  passage  to  a  certain  Avidth  would  not,  it  is  con- 
ceived, give  a  prescriptive  right  to  use  land  to  any 
greater  width^"*  and,  by  the  decided  weight  of  authority, 
the  fiowage  of  a  certain  amount  of  land  for  the  pre- 
scriptive period  gives  no  right,  by  tightening  the  dam, 
or  otherwise,  to  flow  a  greater  amount  of  land.^^  So 
it  has  been  decided  that  the  user  of  a  wall  as  a  party 


73.  In  Bremer  v.  Manhattan 
R.  Co.,  191  N.  Y.  333,  334,  84 
N.  E.  59,  it  was  held  that  a 
prescriptive  right  to  maintain 
and  operate  an  elevated  railway 
track  included  the  right  to 
make  a  change  in  the  motive 
power  and  to  increase  the  length 
of  the  trains,  since  "the  opera- 
tion and  length  of  the  trains  were 
mere  details  of  the  right,  not  sub- 
stantial elements  or  limitations  of 
it." 

74.  See  District  of  Columbia  v. 
Robinson,  14  App.  Cas.  D.  C. 
512;  Dymeak  v.  Christjensen,  279 
111.  242,   116   N.   E.  654. 

75.  Wright  v.  Moore,  38  Ala. 
593,  82  Am.  Dec.  731;  Savannah 
etc.  Canal  Co.  v.  Bourquin  51  Ga. 
378;  Iowa  Power  Co.  v.  Hoover, 
166  Iowa,  415,  147  N.  W.  858; 
Whitehair  v.  Brown,  80  Kan.  297, 
18  Ann.  Cas.  216,  102  Pac.  783, 
and  note;  Turner  v.  Hart,  71 
Mich.  128,  15  Am.  St.  Rep.  243; 
Cook   V.   Beard,   108   Mich.    17,   65 


N.  W.  518;  Reason  v.  Peters,  148 
Mich.  532,  112  N  .W.  117;  Gil- 
ford V.  Winnipeseogee  Lake  Co., 
52  N.  H.  262;  Griffin  v.  Bartlett, 
55  N.  H.  119;  Carlisle  v.  Cooper, 
21  N.  J.  Eq.  571;  Horner  v. 
Stillwell,  35  N.  J.  L.  307;  Stiles 
V.  Hooker,  7  Cow.  (N.  Y.)  266; 
Russell  V.  Scott,  9  Cow.  (N.  Y.) 
279;  Morris  v.  Commander,  3 
Ired  L.  (25  N.  C.)  510;  Tucker 
v.  Salem  Flouring  Mills  Co.,  13 
Ore.  28,  7  Pac.  53;  Mertz  v. 
Dorney,  25  Pa.  519;  Sabine  T. 
Johns,  35  Wis.  183. 

But  in  Maine  &  Massachusetts 
the  height  of  the  dam  is  the 
criterion,  the  person  asserting 
the  easement  having  a  right  to 
maintain  the  dam  to  the  height 
to  which  it  was  maintained 
during  the  prescriptive  period,  ir- 
respective of  changes  In  the  ex- 
tent of  the  fiowage  by  reason  of 
the  state  of  repair  of  the  dam, 
the  extent  of  the  use  of  the 
water,  the  amount  of  water  in  tho 


2C72  Real  Peopeety.  [§  531 

wall  to  a  certain  height  gives  no  right  to  use  it  as 
such  to  a  greater  height.'''^ 

The  question  of  the  user  which  may  be  made  of 
a  prescriptive  right  of  way  has  been  the  subject  of  a 
number  of  adjudications.  That  the  way  was  used  for 
a  single  purpose  will  ordinarily  support  a  right  of  way 
for  that  purpose  only/"  but  that  the  way  was  used  for 
all  purposes  for  which  it  was  desired  to  use  it  justifies, 
it  has  been  held,  a  finding  of  a  right  of  way  for  all 
purposes  for  which  it  might  reasonably  be  desired 
for  the  use  of  the  dominant  tenement  while  substan- 
tially in  the  same  condition. '^^  ''But  if  the  condition 
and  character  of  the  dominant  estate  are  substantially 
altered — as  in  the  case  of  a  way  to  carry  off  wood  from 
wild  land,  which  is  afterwards  cultivated  and  built 
upon,  or  of  a  way  for  agricultural  purposes  to  a  farm, 
which  is  afterwards  turned  into  a  manufactory  or 
divided  into  building  lots — the  right  of  way  cannot  be 
used  for  new  purposes,  required  by  the  altered  condi- 
tion of  the  property,  and  imposing  a  greater  burden 
upon  the  servient  estate.""^  It  has  been  held  however 
that   there   was   no   such   substantial   alteration   of   the 

stream,  or  other  causes.  Voter  76.  Barry  v.  Eblavitch,  84  Md. 
V.  Hobbs,  69  Me.  19;  Cowell  v.  95,  33  L.  R.  A.  294,  35  Atl.  170. 
Thayer,  5  Mete.  (Mass.)  253,  38  77.  Bradburn  v.  Morris,  3  Ch. 
Am.  Dec.  400;  Jackson  v.  Har-  Div.  812;  Wimbledon  &  Putney 
rington,  2  Allen  (Mass.)  242;  Commons  Conservators  v.  Dixon, 
Daniels  v.  Citizen  Sav.  Inst.  127,  1  Ch.  Div.  362;  Atwater  v.  Bod- 
Mass.  534.  Occasionally,  without  fish,  11  Gray  (Mass.)  150;  Parks 
stating  that  the  height  of  the  v.  Bishop,  120  Mass.  340,  21  Am. 
dam    is   the    criterion,   the   courts  Rep.   519. 

refer  to  the  right  to  Increase  78.  Cowling  v.  Higgenson,  4 
the  height  of  the  dam  as  the  Mees.  &  W.  245;  Dare  v.  Heath- 
question  at  issue.  See  Cobia  v.  cote,  25  L.  J.  (N.  S.)  Exch.  245; 
Ellis,  149  Ala.  108,  42  So.  751;  Williams  v.  James,  L.  R.  2  C. 
Haigh  V.  Lenfesty,  239  111.  227,  P.  577;  Sloan  v.  Holliday,  30 
87  N.  E.  962;  Iowa  Power  Co.  Law  Times  (N.  S.)  757;  Parks 
V.  Hoover,  166  Iowa,  415,  147  v.  Bishop,  120  Mass.  340,  21  Am. 
N.  W.  858;   McGeorge  v.  Hoffman,  Rep.   519. 

133  Pa.  St.  381,  19  Atl.  431;    Mc-  79.     Parks  v.  Bishop,  120  Mass. 

Innis    V.    Day    Lumber    Co.,    102  340,  per  Gray,  C.  J.   citing  Wim- 

Wash.  38,   172  Pac.  844.  bledon,    etc.,   v.   Dixon,   1    Ch.    D. 


§  531]  Prescription.  2073 

condition  and  character  of  the  dominant  tenement 
when,  during  the  prescriptive  period,  there  was  one 
dwelling  house  thereon,  and  subsequently  two  additional 
buildings  were  erected,  each  of  which  accommodated 
two  families. ^<> 

After  a  right  of  way  has  been  established  along 
a  certain  line  on  the  basis  of  prescriptive  user  of  the 
servient  tenement  along  that  line,  it  cannot  be  changed 
by  the  person  entitled  thereto  to  another  lino,^'^''  though 
such  person  may,  it  has  been  decided,  deviate  from 
the  original  line,  in  case  of  an  obstruction  by  the  land- 
owner.^'^'' In  the  case  of  a  right  of  way  appurtenant 
to  certain  land  by  prescription,  as  in  that  of  one  by 
grant,  the  way  cannot  be  used  for  the  purpose  of 
going  to  or  from  other  land  beyond.^*'^ 

In  the  case  of  an  easement  to  use  a  wall  on  an- 
other's land  as  a  party  wall,  based  on  prescription,  it 
being  limited  by  the  extent  of  the  use  during  the  pre- 
scriptive period,  the  one  entitled  to  the  easement  has 
no  privilege  of  raising  the  wall,*'''^  or,  if  it  is  raised  by 
its  owner,  of  using  the  additional  part.^^®  It  would 
seem  that  when  two  adjoining  owners  acquire  by  pre- 
scription mutual  party  wall  rights  as  regards  a  wall 
erected  on  the  division  line,  the  same  rule  would  apply, 
so  that  neither  could  raise  the  wall  as  a  whole  with- 
out the  other's  consent. 

362;     Williams    v.    James,    L.    R.  80d.     Welford     v.     Gerard,     108 

2     C.    P.    577;     Atwater    v.    Bod-  Ky.  322,  56  S.  W.  416;    Bright  v. 

fish,    11   Gray    150.  J.    Bacon    &    Sons,    131    Ky.    848. 

80.     Baldwin    v.    Boston    &    M.  116    S.    W.   268,   20   L.   R.   A.    (N. 

R.    R.    181    Mass.    166,    63    N.    E.  S.)    386;    McLaughlin    v.    Cecconi 

428.  141     Mass.     252,     5     N.     E.     261; 

80a.     Nichols  v.  Peck,  70  Conn.  Bright  v.   Allan,   203    Pa.    294,   93 

439,    66    Am.    St.   Rep.    122,   40   L.  Am  St.  Rep.  769,   53  Atl.  251. 

R.   A.   81,  39   Atl.   803;     Vance  v.  80e.     Barry     v.     Edlavitch,     84 

Adams    (Ky.)     112    S.    W.    927.  Md.    95,    35    Atl.    170;     Bright    v. 

80b.     Haley    v.    Concord,    59    N.  Morgan,    218    Pa.     178,    11    Ann. 

H.   9,   47  Am.   Rep.   176.  Gas.    708,    67    Atl.    210;    Brown    & 

80c.     Williams  v.   James,   L.   R.  Hamilton  Co.  v.  Johnson,  251  Pa. 

2  C.  P.  577.     See  ante  §  350.  378,  96   Atl.  823. 


2074 


Real,  Property. 


[§  531 


A  right  which  was  regularly,  during  the  prescrip- 
tive period,  exercised  only  during  a  certain  season  of 
the  year,  can,  after  such  period,  be  exercised  only  at 
that  season.*^^ 

A  prescriptive  riglit  to  divert  water  from  a  stream 
has  been  regarded  as  independent  of  the  use  to  which 
the  water  may  be  put  after  diversion,^^  ]yy^i  ^  g^b- 
stantial  increase  in  the  amount  diverted  would  ordi- 
narily not  be  permissible.^^  A  prescriptive  right  to 
maintain  an  aqueduct  through  another's  land  has  been 
regarded  as  limited  to  the  amount  of  water  conducted 


81.  Cowell  V.   Thayer,   5   Mete 
(Mass.)     253,    38    Am.    Dec.    400 
Griffin  v.  Bartlett,   55  N.  H.  119 
Davis    V.    Brigham,    29    Me.    391 
Swan  V.  Munch,  65  Minn.  500,  67 
N.    W.    1022,    35    L.    R.    A.    743; 
Carlisle   v.    Cooper,    21   N.    J.    Eq. 
576;    Hall  v.   Augsbury,   46   N.   Y. 
622;    Gardner   v.   Wright,   49   Ore. 
609,     91     Pac.     286;      Cleary     v. 
Daniels,— Utah— ,   167   Pac.   820. 

82.  Luttrel's  Case,  4  Co.  Rep. 
86;  Gallaher  v.  Montecito  Valley 
Water  Co.,  101  Cal.  242,  35  Pac. 
770;  Walton  Cranberry  Co.  v. 
Seamon,  171  Mich.  98,  137  N.  W. 
147.  Compare  Mastenbrook  v. 
Alger,  110  Mich.  414,  68  N.  W. 
213;  Scranton  Gas  &  Water  Co. 
V.  Delaware,  L.  &  W.  R.  Co.,  240 
Pa.  604,  47  L.  R.  A.  (N.  S.)  710, 
88  Atl.  24. 

83.  S.  O.  &  C.  Co.  V.  Ansonia 
Water  Co.,  83  Conn.  611,  78 
Atl.  432;  Stock  v.  Hillsdale,  155 
Mich.  375,  119  N.  W.  435;  Irv- 
ing V.  Borough  of  Media,  194  Pa. 
648,    45   Atl.   482. 

In  Michigan  while  it  was  de- 
cided that  a  prescriptive  right  to 
take  water  from  a  lake  was  lim- 
ited to  the  amount  diverted  dur- 
ing the  prescriptive  period  (Stock 


V.  Hillsdale,  155  Mich.  375,  119 
N.  W.  435)  it  was  later  decided 
by  a  majority  of  four  judges  to 
three,  that  the  extent  of  such  a 
right  was  to  be  measured  not 
by  the  amount  taken,  but  the 
level  resulting  from  the  taking, 
and  that  consequently  the  pipe 
could  not  be  lowered  as  the 
level  became  lower.  (Kennedy 
V  Niles  Water  Supply  Co.,  173 
Mich.  474,  43  L.  R.  A.  (N.  S.) 
836,   149   N.   W.   241. 

In  Mally  v.  Weidensteiner,  88 
Wash.  398,  153  Pac.  342,  it  was 
decided  that  a  non  riparian 
owner  who  diverted  one  third  of 
the  total  flow  of  the  stream  dur- 
ing the  prescriptive  period,  had 
no  right  to  claim,  upon  a  diminu- 
tion of  the  total  flow,  a  right  to 
more  than  one  third,  that  is,  a 
right  to  the  same  number  of 
cubic  feet  per  second  as  he  en- 
joyed during  the  prescriptive 
period. 

In  Tinker  v.  Bessel,  213  Mass. 
74,  99  N.  E.  946,  it  appears  to  be 
held  that  a  prescriptive  right  ^^o 
take  water  from  a  spring  is  to  be 
measured  by  the  user  which  was 
apparent  to  the  landowner. 

It    has    been    said,    as    regards 


§  532]  Pkesckiption.  2075 

through  it  during  the  prescriptive  period.^"*  And  it 
has  been  decided  that  one  who  has,  during  the  pre- 
scriptive period,  conducted  water  through  an  open 
ditch  on  another's  land,  does  not  thereby  acquire  the 
n<?ht   to   conduct   water  through   covered  pipes.*^ 

§  532.  Reciprocal  prescriptive  easements.  The  ques- 
tion has  occasionally  arisen  whether,  when  one  has 
acquired  by  prescription  an  easement  in  another's 
land  or  in  diminution  of  another's  natural  rights,  such 
other  has  a  right  to  insist  upon  the  continued  exercise 
of  the  easement.  The  question  has  arisen  ordinarily^ 
if  not  exclusively,  in  connection  with  water  rights. 
There  are  a  number  of  decisions  adverse  to  any  such 
"reciprocal  easement"  in  the  owner  of  the  servient 
tenement,*'^  it  having  been  decided,  for  instance,  that  a 
riparian  owner  has  no  right  to  insist  that  an  upper 
owner,  who  has  acquired  a  prescriptive  right  to  main- 
tain a  dam  in  a  certain  way,  shall  continue  to  maintain 
it  in  the  same  way,*'^  and  likewise  that  one  whose  land 
has   been  utilized  for  the   prescriptive   period   for  the 

the  prescriptive  right  to  take  Co.  L.  R.,  6  Q.  B.  678;  Ark- 
water  from  a  watercourse,  that  wright  v.  Cell,  5  Mees  &  W.  203; 
it  must  appear  that  a  definite  Gale,  Easements  (8th  Ed.)' 
amount  of  water  was  taken  dur-  296.  Editorial  note  11  Columbia 
ing  the  prescriptive  period.  Cus-  Law  Rev.  at  p.  770.  The  cases 
ter  Consol.  Mines  Co.  v.  City  bearing  on  the  subject  are 
of  Helena,  52  Mont.  35,  156  Pac.  stated  and  discussed  at  length  in 
1090;  Hayes  v.  Silver  Creek,  etc.  3  Farnham,  Waters,  §§  819  827b 
Co.  136  Cal.  238,  68  Pac.  704;  828;  and  in  50  L.  R.  A.' at  p! 
Logan  Guichard,  159  Cal.  592,  841,  note  to  Pewaukee  v.  Savoy. 
114  Pac.  989.  87.     Weare    v.    Chase,    93     Me. 

84.  Shrewsbury  v.  Brown,  25  264,  44  Atl.  900;  Brace  v.  Yale, 
Vt.  197;  Darlington  v.  Painter,  99  Mass.  488  (semble);  Sparks 
7  Pa.  473;  Osten  v.  Jerome,  93  Mfg.  Co.  v.  Town  of  Newton,  57 
Mich.  196,  53  N.  W.  7.  N.   J.    Eq.    367,    41    Atl.    385;    Fel- 

85.  Allen  v.  San  Jose  Land  &  ton  v.  Simpson,  11  Ired  L.  (33 
Water  Co.,  92  Cal.  138,  15  L.  R.  n.  C.)  84;  Vliet  v.  Sherwood,  35 
R.  93,  28  Pac.  215.  Wis.     229:      Contra,     Belknap'    v. 

86.  See  in  addition  to  the  Trimble,  3  Paige,  Ch.  (N.  Y.) 
cases  cited  in  the  following  notes,  .577,  605;  Middleton  v.  Gregorie, 
Mason    v.    Shrewsbury    &    H.    R.  2  Rich.  L.    (S.  C.)   638. 


2076  Eeal  Property.  [§  532 

discharge  of  water  has  no  right  to  demand  that  the 
water  shall  continue  to  be  discharged  on  or  over  his 
land.^^ 

So  far  as  the  doctrine  of  prescription  is  concerned, 
the  decisions  above  referred  to  would  appear  to  be 
absolutely  unexceptionable.  In  order  that  one  may 
acquire  a  prescriptive  right  in  another's  land  his  user 
of  such  land  during  the  prescriptive  period  must  be 
actionable,^^  and  the  doctrine  of  reciprocal  rights  based 
on  prescription  would  seem  to  be  tenable  only  on  the 
assumption  that,  because  A  has  a  right  of  action  dur- 
ing the  prescriptive  period  against  B  by  reason  of  B's 
infringement  of  A's  rights,  B  has  a  right  of  action 
during  such  period  against  A,  an  assumption  which  is 
evidently  unwarranted.  It  may  no  doubt  occur  that 
coincidently  with  A's  adverse  user  of  B's  land,  on  ac- 
count of  which  B  has  a  right  of  action  against  A,  B 
makes  an  adverse  user  of  A's  land,  on  account  of  which 
A  has  a  right  of  action  against  B,  but  such  a  con- 
junction of  circumstances  is  necessarily  of  but  in- 
frequent occurrence.  And  as  has  been  judicially  re- 
marked, ''the  enjoyment  of  the  easement  is  of  itself  no 
evidence  that  the  party  enjoying  it  has  become  sub- 
ject to  the  servitude  of  being  bound  to  exercise  the 
easement  for  the  benefit  of  the  neighbor.  A  right  of 
way  is  no  evidence  that  the  party  entitled  thereto  is 
under  a  duty  to  walk;  nor  a  right  to  eavesdropping  on 
the  neighbor's  land,  that  the  party  is  bound  to  send  on 
his   rainwater  to   that  land."^^     In  spite,  however,   of 

88.     Gaved     v.     Martyn,     19     C.  well,    38    Ohio    St.    518;     Hill    v. 

B.  N.  S.  732;   Oliver  v.  Lockie,  1^6  American  Land  &  Live  Stock  Co., 

Ont.    28;    Lambeye   v.    Garcia,    18  82  Ore.  202,  161  Pac.  403;    Garns 

Ariz.    178,    157    Pac.    977;     Burk-  v.  Rollins,  41  Utah,  260,  Ann.  Gas. 

hart   V.   Meiberg,   37   Colo.   187,   6  1915C,  1159,  125  Pac.  867;  Roberts 

L.  R.  A.  N.  S.  1104,  119  Am.   St.  v.  Gribble,  43  Utah,  411,  134  Pac. 

Rep.  279,  86  Pac.  98;    Mitchell  v.  1014;    Lyons    v.    Ingle,    91    Wash. 

Parks,   26   Ind.   363;    Lake   Drum-  179,  157  Pac.  460. 

mond  Canal  &  Water  Co.  v.  Burn-  88a.     Ajiie,    §    524. 

ham,    147   N.    C.    41,    17   L.   R.   A.  £9.     Per    Erie,   C.   J.,    in    Gaved 

(N.  S.)  945,  125  Am.  St.  Rep.  v.  Martyn,  19  C.  B.  N.  S.  732. 
527,   60   S.   E.   650;    Peter   v.   Cas- 


§  532]  Prescription.  2077 

the  valid  theoretical  objections  to  such  a  doctrine  of 
reciprocal  rights  by  prescription,  there  are  a  number  of 
judicial  expressions  in  its  favor  and  the  tendency  of 
the  cases  in  this  country  appears  to  be  in  that  direction, 
so  far  as  concerns  rights  as  to  water.  It  has,  for 
instance,  been  said  that  the  rule  as  to  the  adverse 
enjojanent  of  water  must  be  reciprocal,  and  one  who 
has  taken  the  water  from  the  original  channel,  and  has 
continued  to  divert  and  enjoy  it  for  a  period  beyond 
the  time  fixed  by  the  statute  of  limitations  as  to  real 
actions,  cannot  afterwards  be  permitted  to  restore  it 
to  its  original  state  when  it  will  have  the  effect  to 
destroy  or  materially  injure  those  through  or  by  which 
it  formerly  flowed.^^  And  there  are  a  number  of  cases 
in  which  a  like  view  has  been  asserted,  with  more  or 
less  distinctness,  as  regards  the  right  of  one  who  has 
changed  the  channel  of  a  stream  to  restore  it  to  its 
former  channel  as  against  one  who  has  enjoyed  it  dur- 
ing the  prescriptive  period  in  its  artificial  channel.^^ 
It  has  also  been  asserted  that  one  who  has  acquired 
a  prescriptive  right  of  flowage  on  another's  land  can- 
not discontinue  or  lessen  the  flowage  to  the  detriment 
of  persons  whose  lands  are  subjected  thereto  as  well 
as  to  others,^^  and  that  an  upper  proprietor  who  has 

90.  Matthewson  v.  Hoffman,  77  gart  v.  Jaflrey,  75  N.  H.  473,  28 
Mich.  420,  6  L.  R.  A.  349,  43  N.  L.  R.  A.  (N.  S.)  1050,  139  Am. 
W.  879;  Broadwell  Special  Drain-  St.  Rep.  729,  76  Atl.  123.  Contra, 
age  District  v.  Lawrence,  231  111.  Peter  v.  Caswell,  38  Ohio  St.  518. 
86,  83  N.  E.  104;  Kray  v.  In  North  Fork  Water  Co.  v.  Ed- 
Muggii,  84  Minn.  90,  54  L.  R.  A.  wards,  121  Cal.  662,  54  Pac.  69, 
473,  87  Am.  St.  Rep.  332,  86  N.  it  was  held  that  one  who  had  a 
W.  882.  prescriptive      right      to      conduct 

91.  Delaney  v.  Boston,  2  Harr..  water  through  a  ditch  on  an- 
(Del.)  489;  Murchie  v.  Gates,  78  other's  land  could  not  alter  the 
Me.  300,  4  Atl.  698;  Matthewson  ditch  so  as  to  allow  storm  water, 
V.  Hoffman,  77  Mich.  420,  43  N.  which  had  previously  passed 
W.  879,  6  L.  R.  A.  349;  Smith  away  by  the  ditch,  to  run  on  the 
V.    Musgrove,    32    Mo.    App.    241;  land. 

Shepardson   v.   Perkins,   58   N.  H.  92.     Kray   v.    Muggli,    84    Minn. 

354;  Woodbury  v.  Short,  17  Vt.  90,  54  L,  R.  A.  47:3,  87  Am.  St. 
387,   44   Am.   Dec.   344.     See   Tag-      Rep.    .332,    86    N.    W.    882;    Fin    & 

2  R.  P.— 56 


2078  Real  Property.  [§  532 

acquired  by  prescription  the  right  to  change  the 
natural  manner  of  flow  of  a  stream  cannot  restore  the 
natural  manner  of  flow  to  the  detriment  of  mills 
erected  with  reference  to  such  changed  manner  of 
flow.^^  In  a  considerable  number  of  these  cases,  how- 
ever, in  which  such  reciprocal  rights  are  recognized, 
the  element  of  equitable  estoppel  appears  to  have  had 
considerable  weight,  that  is,  the  court  considered  that, 
the  servient  owner  having  incurred  expenditures  under 
the  reasonable  supposition  created  by  the  dominant 
owner's  conduct,  that  the  exercise  of  the  easement  would 
not  be  discontinued,  the  dominant  owner  should  not  be 
allowed  to  discontinue  it.  The  doctrine  of  estoppel  is  evi- 
dently entirely  independent  of  any  doctrine  of  reciprocal 
easements  by  prescription,  and  if  the  former  doctrine  is 
otherwise  applicable  in  favor  of  the  servient  owner, 
it  is  difficult  to  see  why  its  application  should  bo  limited 
to  the  case  in  which  the  user  of  his  land  by  the  domi- 
nant owner  has  ripened  into  a  right  by  reason  of  its 
continuance  for  the  prescriptive  period. 

So  far  as  concerns  the  right  of  one  who  has,  for 
the  prescriptive  period,  caused  the  water  of  a  stream 
to  flow  through  another's  land,  subsequently  to  restore 
the  stream  to  its  original  channel,  to  the  detriment  of 
such  other,  the  latter  might  perhaps  be  protected,  in 
some  states,*^^  upon  the  theory  that,  after  the  prescrip- 
tive period  has  elapsed,  even  if  not  before,  the  arti- 
ficial channel  is  to  be  regarded  as  the  natural  cliannel, 
so  far  as  concerns  the  rights  of  those  througli  whose 
land  it  passes,  and  so  in  the  case  of  a  lake  or  pond 
created  by  the  flowage  of  another's  land,  the  person 
whose  land  is  subjected  in  part  to  the  flowage  might  be 

Feather     Club     v.    Thomas, — Tex.  93.     Belknap      v.      Trimble,      3 

Civ.  App.— ,   138   S.   W.    150.     See  Paige    573;    Murchie   v.    Gates,   78 

also    Smith   v.   Youmans,   96   Wis.  Me.  300,  4  Atl.  698.     See  Marshall 

103,  37  L.  R.  A.  285,   65   Am.  St.  Ice    Co.    v.    La    Plant,    136    Iowa, 

Rep.  30,  70  N.  W.  1115;  Pewaukee  621,  12  L.  R.  A.   (N.  S.)  1073,  ill 

V.  Savoy,  103  Wis.  271,  79  N.   W.  N.    W.    1016. 

436,  50  L.  R.  A.   836,   74  Am.   St.  94.     Ante,   §    339(h). 
Rep.   859. 


§  533]  Prescription.  2079 

regarded  as  in  the  position  of  a  riparian  owner  on  a 
natural  lake  or  pond,  and  as  such  entitled  to  object  if 
the  person  who  created  the  pond  or  lake  takes  active 
measures  to  lower  its  level.  With  this  may  be  com- 
pared the  English  view,  that  where  an  artificial  water- 
course or  an  artificial  diversion  of  a  natural  water- 
course is  not  in  its  nature  merely  temporary,  tht  owner 
of  land  by  or  through  which  the  water  flows  may  have, 
on  the  theory  of  prescription,  a  right  to  the  uninter- 
rupted flow  of  the  water,  or  to  make  a  particukir  use 
thereof,  the  question  of  whether  a  grant  of  such  a  right 
shall  be  presumed  being  determined  with  reference  to 
the  circumstances  under  which  the  artificial  water- 
course or  diversion  was  presumably  created,  and  the 
mode  in  which  it  has  been  in  fact  used  and  enjoyed.^ ^ 

§  533.  Prescription  for  highways,  (a)  General 
considerations.  A  right  to  use  land  for  highway  pur- 
poses may  usually  be  acquired  by  the  public  by  its  use 
for  such  purposes  under  a  claim  of  right  for  the 
statutory  period  of  limitation  as  to  land.  Such  mode 
of  acquisition  of  highway  rights  is  ordinarily  referred 
to  as  ''prescription,'"^^  and  is  usually  based  on  the 
theory  that  such  user  of  the  land  raises  the  presump- 
tion of  a  dedication,  or  of  an  appropriation  of  the  land 
by  a  statutory  proceeding.^'''     In  some  states  there  are 

95.  Arkwright  v.  Gell,  5  Mees.  fiction  of  a  grant  can,  however, 
&  W.  203;  Gaved  v.  Martyn,  19  hardly  be  regarded  as  an  inte- 
C.  B.  N.  S.  732;  Wood  v.  Waud,  gral  part  of  the  law  of  pre- 
3  Exch.  748;  Burrows  v.  Lang,  scription  in  this  country  at  the 
(1901),   2   Ch.   508;    Bailey  &   Co.  present  day. 

V.  Clark,  Son  &  Morland,   (1902),  97.     Howard   v.    State,    47    Ark. 

1    Ch.    649.  431,   2    S.   W.   331;    Schwerdtle   v. 

96.  If  prescription  is  to  be  Placer  County,  108  Cal.  589,  41 
regarded  as  necessarily  based  on  Pac.  448;  Daniels  v.  People,  21 
the  presumption  of  a  grant,  the  111.  439;  Pittsburgh,  C,  C.  &  St. 
term  is  not  accurate  as  applied  L.  Ry.  Co.  v.  Town  of  Crown 
to  the  case  of  a  highway,  since  Point,  150  Ind.  536,  50  N.  E. 
highway  rights  are  created,  not  741;  Onstott  v.  Murray,  22  Iowa, 
by  grant  but  by  dedication.  See  457;  Thomas  v.  Ford,  63  Md. 
Angell,    Highways,    §     131.      The  346,    52    Am.    Rep.    513;    Reed    v. 


2080 


Beal  Property. 


[§  533 


statutory  provisions  in  regard  to  the  effect  of  iiser  by 
the  public  as  establishing  a  highway.^^ 

Not  only  may  long  user  by  the  public  operate  to 
establish  a  highway  otherwise  non  existent,  but  it  may 
also  operate  to  change  the  line  of  the  highway.^^  And 
if  the  exact  line  or  limits  of  the  highway  are  otherwise 
uncertain,  prolonged  user  will  serve  to  make  them  cer- 
tain.^ Occasional  decisions  that  passage  by  the  public 
off  the  actual  line  of  the  highway,  although  continued 
for  the  prescriptive  period,  will  establish  no  right  to 
continue  such  passage,  if  such  divergence  from  the  true 
line  of  the  highway  is  the  result  of  mistake,^  are  based 
upon   the   analogy   of   the    doctrine,   asserted    in    some 


Inhabitants  of  Northfield,  13 
Pick.  (Mass.)  94,  23  Am.  Dec. 
662;  Willey  v.  Portsmoutli,  35  N. 
H.  303;  Comm.  v.  Cole,  26  Pa. 
St.  187;  note  5  Columbia  Law 
Rev.  608;  note  57  Am.  St.  Rep. 
744. 

98.  See  Freshour  v.  Hihn,  99 
Cal.  443,  34  Pac.  87;  Chicago  v. 
Gait,  224  111.  421,  79  N.  E.  701; 
Strong  V.  Makeever,  102  Ind.  578, 
1  N.  E.  502,  4  N.  E.  11;  Neal 
V.  Gilmore,  141  Mich.  519,  104 
N.  W.  609;  Elfelt  v.  Stillwater 
St.  Ry.  Co.,  53  Minn.  68,  55  N. 
W.  116;  Speir  v.  Town  of  New 
Utrecht,  121  N.  Y.  420,  24  N.  E. 
692;  Stewart  v.  Frink,  94  N.  C. 
487;  Walcott  Twp.  v.  Skauge, 
6  N.  D.  382,  71  N.  W.  544; 
Comm.  V.  Kelly,  8  Gratt.-  (Va.) 
632:  Dicken  v.  Liverpool  Salt  & 
Coal  Co.,  41  W.  Va.  511,  23  S. 
E.   582. 

99.  Patton  v.  State,  50  Ark. 
53,  6  S.  W.  227;  Patterson  v. 
Munyan,  93  Cal.  128,  129,  29  Pac. 
250:  Landers  v.  Town  of  White- 
field,  154  111.  630,  39  N.  E.  656: 
Strong  V.  Makeever,  102  Ind.  578 


1  N.  E.  502.  4  N.  E.  11;  Joseph 
V.  Sharp,  172  Iowa,  254.  154  N. 
W.  469;  Stockwell  v.  Fitchburg, 
110  Mass.  305;  Meyer  v.  Peters- 
burg, 99  Minn.  450.  109  N.  W. 
840;  Zimmerman  v.  Snowden,  88 
Mo.  218  (semile);  Brandt  v. 
Olson,  79  Neb.  612,  113  N.  W. 
151,  114  N.  W.  587;  Comm.  v. 
Marshall,  137  Pa.  170,  20  Atl.  580; 
Almy  V.  Church,  18  R.  I.  182.  26 
Atl.  58;  State  v.  Lloyd,  133  Wis. 
408.  133  N.  W.  964;  Christian- 
son  v.  Caldwell,  152  Wis.  135, 
139   N.  W.   751. 

1.  Taeger  v.  Riepe,  90  Iowa, 
484,  57  N.  W.  1125;  Comm.  v. 
Logan,  5  Litt.  (Ky.)  286;  Marl- 
boro Twp.  V.  Van  Derveer,  47  N. 
J.  L.  259;  Western  Railway  of 
Ala.  V.  Alabama  G.  T.  R.  Co.,  96 
Ala.  272,  17  L.  R.  A.  474,  11  So. 
483. 

2.  Bolton  V.  McShane,  79 
Iowa,  26;  State  v.  Welpton,  34 
Iowa,  144;  Hamilton  County  v. 
Garrett,  62  Tex.  602;  Shanline 
V.  Wiltsie,  70  Kan.  177,  78  Pac. 
436. 


533] 


Presckiption". 


2081 


states,    that    possession    beyond    one's    boundary    line,, 
which  is  the  result  of  mistake,  is  not  adverse.^ 

(b)    User  by  public  necessary.     The  user  by 


the  jjublic  of  private  land  for  purposes  of  passage,  in 
order  to  establish  a  highway  by  prescription,  must  be 
along  substantially  one  line,^  as  must  a  prescriptive 
private  way.^  A  slight  divergence  is,  however,  it 
seems,  permissible,  especially  w^hen  caused  by  the  phys- 
ical condition  of  the  road.^ 

As  to  what  constitutes  a  user  by  the  public,  it  has 
been  said  that  the  public  means,  in  this  connection,  all 
those  w^ho  have  occasion  for  the  user,'^  and  that  the 
amount  of  travel  is  immaterial.^  On  the  other  hand 
it  appears  that  user  by  a  few  individuals,^  or  by  the 
residents  in  the  neighborhood^^  is  not  sufficient.     The 


3.  Ante,  §   505. 

4.  Sprague  v.  Stead,  56  Colo. 
538,  139  Pac.  544;  O'Connell  v. 
Chicago  Terminal  Transfer  R. 
Co.,  184  111.  308,  56  N.  E.  355; 
Hougham  v.  Harvey,  40  Iowa, 
634;  Schroeder  v.  Village  of 
Onekama,  95  Mich.  25,  54  N.  W. 
642;  Montana  Ore  Purchasing 
Co.  V.  Butte  &  B.  Consol.  Min. 
Co.,  25  Mont.  427,  65  Pac.  420; 
South  Branch  R.  Co.  v.  Parker, 
41  N.  J.  Eq..  489  5  Atl.  641; 
Montgomery  v.  Somers,  50  Ore. 
259,  90  Pac.  674;  Brake  v. 
Crider  107  Pa.  St.  210..  Sample 
V.  Harter,  37  S.  D.  150,  156  N. 
W.  1016;  Hart  v.  Town  of  Red 
Cedar,  63  Wis.  634,  24  N.  W. 
410. 

5.  Ante,   §   525,   note  41. 

6.  Vance  v.  Adams, —  (Ky.) — , 
112  S.  W.  927;  City  of  Beatrice  v. 
Black.  28  Neb.  263,  44  N.  W. 
189;  Kendall  Smith  Co.  v.  Lan- 
caster County,  84  Neb.  654,  121 
N.  W.  960;  Kurtz  v.  Hoke,  172 
Pa.   St.   165,   33   Atl.   549. 


7.  Louisville,  etc.,  R.  Co.  v. 
Etzler,  3  Ind.  App.  562;  Village 
of  Grandville  v.  Jenison,  84 
Mich.  54,  47  N.  W.  600;  Easter 
V.  Overlea  Land  Co.,  129  Md.  627, 
99  Atl.  893;  Jones  v.  Davis,  35 
Wis.   376. 

8.  Louisville,  etc  R.  Co.  v. 
Etzler,  3  Ind.  App.  562;  Bald- 
win V.  Herbst,  54  Iowa,  168,  6 
N.  W.  257;  Village  of  Grand- 
ville V.  Jenison,  84  Mich.  54,  47 
N.    W.    600. 

9.  Harper  v.  State,  109  Ala. 
66,  19  So.  901;  Martin  v.  Peo- 
ple, 23  111.  395;  O'Connell  v. 
Chicago  Terminal  Transfer  Co., 
184  111.  308;  State  v.  Tucker,  36 
Iowa,  485;  Eddy  v.  Clarke.  38  R. 
I.  371,  95  Atl.  851.  See  State 
V.  Auchard,  22  Mont.  14,  55  Pac. 
361;  Rice  v.  Pershall,  41  Wash. 
73,  82  Pac.  1038;  O'Connell  v. 
Chicago  Terminal  Transfer  R. 
Co.,   184    111.   308,   56   N.   E.   355. 

10.  Easter  v.  Overlea  Land 
Co.  of  Baltimore  County,  129 
Md.    627,    99    Atl.    893;     State    v. 


2082  Eeal  Property.  [^  533 

result  of  the  cases  would  seem  to  be  that,  while  travel 
over  the  land  need  not  be  frequent,  it  must  not  be 
confined  to  persons  who  can  be  identified  or  segregated 
from  the  members  of  the  community  as  a  whole,  that 
is,  user  by  the  public  does  not  mean  user  by  certain 
specific  members  of  the  public. 

(c)    Adverseness  of  user.    In  order  to  establish 


a  highway  by  prolonged  user  of  the  land  for  highway 
purposes,  the  user  must  be  adverse,^ ^  and  the  expres- 
sion ''adverse"  in  this  connection  presumabl}^  means 
the  same  as  in  connection  with  the  doctrines  of  adverse 
possession  and  prescription  for  private  rights  of  user, 
a  lack  of  recognition  of  any  right  in  the  landowner 
ever  to  put  an  end  to  it.  When  the  user  is  not  adverse, 
that  is,  when  the  user  is  accompanied  by  recognition  of 
such  right  in  the  landowner,  the  latter  has  no  reason  to 
interfere  with  the  user,  and  consequently  no  inference 
of  a  right  of  user  should  be  drawn  from  his  failure  to 
do  so.  Furthermore,  the  very  idea  of  a  user  for  high- 
w^ay  purposes  invoves  a  negation  of  the  right  in  the  land- 
owner to  put  an  end  to  such  user.  That  the  user  is  by 
permission   shows    that    the    user   is    not    adverse,^^   it 

Lucas,   124  N.   Car.   804,   32   S.   E.  741;    Stickley    v.    Sodus    Tp.,    131 

553;     Stotts    v.    Dichdel,    70    Ore.  Mich.    510,    59    L.    R.    A.    287,    91 

86,   139    Pac.   932,   933;    Witter   v.  N.    W.    745;    Hamilton   v.   Village 

Harvey,  1  McCord,  L.    (S.  C.)    67,  of    Owego,    42    N.    Y.    App.    Div. 

10   Am.   Dec.   650.  312,  59  N.  Y.  Supp.  103;    Stewart 

11.     District     of     Columbia     v.  v.    Frink,    94    N.    C.    487,    55    Am. 

Robinson,    180    U.    S.    92,    45    L.  Rep.    618. 

Ed.    440,    14    App.    Cas.     (D.    C.)  That,    under    certain    statutory 

512;    City   of   Chicago   v.    Borden,  provisions     as     to     highways     by 

190  111.   430,   60   N.   E.   915;    Ladd  user,    the    user    need    not    be    ad- 

V.    Osborne,    79    Iowa,    93,    44    N.  verse,    see    Strong    v.    McKeever, 

W.    235;     Mayberry    v.    Standish,  102    Ind.    578,    1    N.   E.    502,    4   N. 

56   Me.    432;    Johanson   v.   Boston  E.   11;    Wellsville  v.  Hallock,    (N. 

&  A.  R.   Co.,  153  Mass.  79,  26  N.  Y.   Misc.),    139   N.   Y.    Supp.   961; 

E.     238;      Slater     v.     Gunn,     170  Bolger     v.     Foss,     65     Cal.     250. 

Mass.    509,    41    L.    R.    A.    268,    49  3  Pac.  871    (semble) . 
N.    E.    1017;    Pittsburgh,    C.    C.   &  12.     Jones    v.    Bright,    140    Ala. 

St.  L.  Ry.  Co.  V.  Town  of  Crown  268,    37   So.    79;    Olson   v.   People, 

Point,    150    Ind.    536,    50    N.    E.  56    Colo.    199,    138    Pac.    21;    Chi- 


§  533] 


Pkescriptiox. 


2083 


necessarily   involving    a    recognition    of    such    right    in 
the  landowner. 

The  recognition  of  the  landowner's  right  to  stop 
the  user  being  an  affirmative  fact,  it  is,  it  seems,  for 
him  to  show  it,  that  is,  the  user  of  land  by  the  public 
may,  in  the  ordinary  case,  be  presumed  to  be  adverse,^'' 
in  the  absence  of  circumstances  tending  to  show  the 
contrary.  A  contrary  presumption,  however,  that  the 
user  is  permissive,  is  generally  recognized  in  the  case 
of  wild  or  unoccupied  land,  especially  if  unenolosed.^^ 


cago  V.  Chicago,  R.  I.  &  P.  Ry. 
Co.,  152  111.  561,  38  N.  E.  768; 
Baltimore  &  O.  S.  W.  Ry.  Co. 
V.  City  of  Seymour,  154  Ind. 
17,  55  N.  E.  953;  Moffatt  v. 
Kenny,  174  Mass.  311,  54  N.  E. 
850;  Weihe  v.  Macatawa  Resort 
Co.,  198  Mich.  334,  164  N.  W. 
510;  State  v.  Fisher,  117  N.  C. 
733,  23  S.  E.  158;  Bayard  v. 
Standard  Oil  Co.,  38  Ore.  438,  63 
Pac.  614;  Ferdinando  v.  City  of 
Scranton,  190  Pa.  St.  321,  42  Atl. 
692;  Gaines  v.  Merryman,  95  Va. 
,660,  29  S.  E.  738;  Fitts  v. 
County,  78  Wash.  238,  138  Pac. 
885. 

13.  Carter  v.  Walker,  186  Ala. 
140,  65  So.  170,  171  (but  see 
Jones  V.  Bright,  140  Ala.  268,  37 
So.  79;  Belleview  Cemetery  Co. 
V.  McEvers,  168  Ala.  535,  53  So. 
272);  Hartley  v.  Vermillion,  141 
Cal.  339,  74  Pac.  987  (semhle); 
Thorworth  v.  Scheets  269  111. 
573,  110  N.  E.  42;  Southern 
Indiana  R.  Co.  v.  Norman.  165 
Ind.  126,  74  N.  E.  896;  Meade 
V.  Topeka,  75  Kan.  61,  88  Pac. 
574;  Jefferson  v.  Callahan,  153 
Ky.  38,  154  S.  W.  898;  Canton 
Co.  of  Baltimore  v.  Mayor,  etc., 
of  City  of  Baltimore  104  Md. 
.582,  65  Atl.  324;  Brandt  v.  Ol- 
son,  79   Neb.   612,    113   N.   W.   151 


(senible) ;  White  v.  Town  of 
Edenton,  171  N.  C.  21,  86  S.  E. 
170;  Earle  v.  Boat,  63  S.  C.  439, 
41  S.  E.  525;  Hanson  v.  Taylor. 
23   Wis.   547. 

14.  Brumley  v.  State,  83  Ark. 
236,  103  S.  W.  615;  Ely  v.  Par- 
sons, 55  Conn.  83,  10  Atl.  499; 
O'Connell  v.  Chicago  Terminal 
Transfer  R.  Co.,  184  111.  308,  56 
N.  E.  355;  State  v.  Kansas  City, 
etc.,  R.  Co.,  45  Iowa,  139;  State 
V.  Horn,  35  Kan.  717,  12  Pac. 
148;  Potter  v.  Magruder,  30  Ky. 
L.  Rep.  76,  97  S.  W.  732;  May- 
berry  V.  Standish,  56  Me.  342; 
Engle  V.  Hunt,  50  Neb.  358,  69 
N.  W.  970;  Hutto  v.  Tindall,  6 
Rich.  Law,  396;  State  v.  Rod- 
man, 86  S.  Car.  154,  68  S.  E. 
343;  McKinney  v.  Duncan,  121 
Tenn.  265,  118  S.  W.  683;  Cun- 
ningham V.  San  Saba  County,  1 
Tex.  Civ.  App.  480,  20  S.  W.  941; 
Watson  V.  Board  of  Com'rs  of 
.A.dams  County,  38  Wash.  662,  80 
Pac.  201;  Board  of  Com'rs  of 
Sheridan  County  v.  Patrick,  18 
Wyo.  130,  104  Pac.  531,  107  Pac. 
748.  So,  it  seems,  in  the  case 
of  an  open  common  in  a  town.  Mc- 
Kay V.  Reading,  184  Mass.  140,  68 
N.  B.  43;  Langley  v.  Gallipolis,  2 
Ohio  St.  107. 


2084 


Eeal  Peopbety. 


[§  533 


And  if  there  is  already  a  private  way,  which  is  open 
to  the  use  of  the  public,  the  public  use  thereof,  to  a 
limited  extent  at  least,  cannot  be  presumed  to  be  ad- 
verse, in  the  absence  of  anything  to  show  that  it  is  so.^^ 
The  fact  that  there  was  an  ineffectual  attempt 
to  dedicate  does  not  make  the  user  by  the  public  per- 
missive,^^ the  case  being  analogous  to  that  of  an  indi- 
vidual claiming  under  an  invalid  grant  of  an  ease- 
ment." And  likewise  the  public  user  is  adverse  if 
based  on  a  defective  jrroceeding  for  the  establishment 
of  a  high  way.  ^^ 

(d)    Necessity  of  claim  of  right.     It  is  fre- 


quently said  that  the  user  must  be  under  a  claim  of 
right  in  the  public,^^  but  it  may  be  questioned  whether 
this   means   anything  more  than   that   it   must   be   ad- 


15.  Shellhouse  v.  State,  110 
Ind.  509,  11  N.  E.  484;  Sprow  v. 
Boston  &  A.  'R.  Co.,  163  Mass. 
330,  39  N.  E.  1024;  Aikens  v. 
New  York,  N.  H.  &  H.  R.  Co., 
188  Mass.  547,  74  N.  E.  929; 
Stickley  v.  Sodus,  T.  P.,  131 
Mich.  510,  59  L.  R.  A.  287,  91  N. 
W.  745;  Speir  v.  Town  of  Utrecht, 
121  N.  Y.  420,  24  N.  E.  692;  Cin- 
cinnati &  M.  v.  R.  Co.  V.  Rose- 
ville,  76  Ohio  St.  10§,  81  N.  E. 
178;  Bohrnstedt  Co.  V.  Scharen,  60 
Ore.  349,  119  Pac.  337;  Root  v. 
Comm.  98  Pa.  St.  170,  42  Am. 
Rep.  614;  Frye  v.  Village  of 
Highland,  109  Wis.  292,  85  N.  W. 
351. 

16.  Bassett  v.  Harwich,  180 
Mass.    585,    62    N.    E.    974. 

17.  Ante,   §    519,   note   69. 

18.  Emira  Highway  Com'rs.  v. 
Osceola  Highway  Corn's,  74  111. 
App.  185;  Richards  v.  Bristol 
County  Com'rs,  120  Mass.  401; 
Neal  V.  Gilmore,  141  Mich.  519, 
104  N.   W.   609;    Rogers  v.   Town 


of  Aitkin,  77  Minn.  539,  80  N.  W. 
702;  State  v.  Auchard,  22  Mont. 
14,  55  Pac.  361;  Lydick  v.  State, 
61  Neb.  309,  85  N.  W.  70;  Bryant 
V.  Tamworth,  68  N.  H.  483,  39 
Atl.  431;  Bayard  v.  Standard  Oil 
Co.,  38  Ore.  438,  63  Pac.  614; 
Village  of  West  Bend  v.  Mann, 
59    Wis.    69,   17    N.   W.   972. 

19.  Jones  v.  Bright,  140  Ala. 
268,  37  So.  79;  Lieter  v.  People, 
33  Colo.  493,  81  Pac.  270;  City  of 
Chicago  V.  Wildman,  240  111. 
215,,  88  N.  E.  559;  Southern 
Indiana  R.  Co.  v.  Norman,  165 
Ind.  126,  74  N.  E.  896;  Fairchild 
V.  Stewart,  117  Iowa,  734,  89  N. 
W.  1075;  May  v.  Blackburn,  — 
Ky.  — ,  25  S.  W.  112;  Slater  v. 
Gunn,  170  Mass.  509,  41  L.  R.  A. 
268,  49  N.  E.  1017;  Wills  v.  Reed, 
86  Miss.  446,  38  So.  793;  Quinn  v. 
St.  Louis  &  S.  F.  R.  Co.,  253  Mo. 
48,  161  S.  W.  820;  Nelson  v. 
Sneed,  76  Neb.  201,  107  N.  W. 
255;  White  v.  Wiley,  59  Hun  (N. 
Y.)     618,     13    N.    Y.    Supp.    205; 


§  533]  PnESCRiPTrox.  2085 

verse,2"  that  is,  must  be  ''as  of  right,"  and  it  must 
necessarily  be  ''as  of  right  in  the  public,"  if  it  is  by 
the  public  and  adverse.  It  is  recognized  that  this 
requirement  of  claim  of  right  involves  no  necessity 
that  each  member  of  the  public,  in  passing  over  the 
land,  shall  state  that  he  claims  the  right  to  do  so  as 
one  of  the  public,^!  and  the  requirement  of  claim  of 
right  appears  ordinarily  to  be  satisfied  by  acts  and 
circumstances  of  a  character  which  serve  to  show  that 
the  user  is  adverse. 

(e)    Necessity  of  notice  of  user.     The  public 


user  must  be  with  the  knowledge  of  the  owner  of  the 
land,22  or  the  circumstances  must  be  such  that  he  can 
be   charged   with   notice.^s 

It  has  been  said  that  the  owner  must  be  charge- 
able with  notice  that  the  user  is  under  claim  of  right 
in  the  public,^*  and  in  at  least  two  states  it  is  laid 
down  ^  that  there  must  be  acts  on  the  part  of  the 
municipal    authorities    sufficient    to    show    notice    that 

state  V.  Fisher.  117  N.  C.  733,  23  Sprow  v.  Boston  &  A.  R.  Co.,  163 

S.  E.  158;    Root  v.  Comm.  98  Pa.  Mass.   330,  39  N.   E.   1024. 

170,    .42  Am.  Rep.  614;    Sharp  v.  22.     Falter  v.  Packard,  219   111 

Mynatt,  1   Lea    (Tenn.)    375.     Oc  356,     76     N.     E.     495;      state     v. 

casional    decisions    to    the    effect  Green,     41    Iowa,     693;     State    v. 

that    a    user    by     the    public    is  Teeters,   97    Iowa,   458,'  66    N.   W. 

presumed   not  to   be   under   claim  754;   Graham  v.  Hartnett,  10  Neb. 

of  right    (Merchant  v.   Markham,  518;    Rice   v.    PershaU,    41    Wash 

170  Ala.  278.   54  So.  236;    Gulf  &  73,  82  Pac.  1038. 

S.    I.    R.    Co.    V.    Adkinson,    117  23.    Patton  v.  State,  50  Ark    53 

Miss.    118,    77    So.    954)     do    not  6  S.  W.  227;  State  v.  Kansas  City, 

appear     to     harmonize    with     the  etc.  R.  Co.,  45  Iowa,   139;    O'Con- 

decisions   (ante,  this  section,  note  nell  v.  Chicago  Terminal  Transfer 

14)   that  such  user  in  the  case  of  R.  Co.,  184  111.  308,  56  N.  E.  355; 

enclosed    land    at    least,    is    pre-  Village    of   Manchester   v.    Clark- 

sumed    to   be   adverse.  son,    195    Mich.    354,    162    N.    W. 

20.  See  Palmer  v.  Chicago,  248  115. 

in.  201,  93  N.  E.  765.  24.     O'Connell  v.  Chicago  Term- 

21.  Hansen  v.  Green,  275  111.  Inal  Transfer  R.  Co.  184  111 
221,  113  N.  E.  982;  Shellhouse  v.  308,  56  N.  E.  355;  'sprow  v. 
State,  110  Ind.  509.  11  N.  E.  Boston  &  A.  R.  Co.',  163  Mass. 
484;  State  v.  Green,  41  Iowa,  693;  330,    39    N.    E.    1024. 


2086 


Real  Property. 


[§  533 


the  user  is  of  that  character.-^  If,  however,  the  land- 
owner is  chargeable  with  notice  of  the  user  in  the  par- 
ticular case,  he  might,  it  would  seem,  be  charged  with 
notice  of  the  character  of  the  user,  except  when  the 
circumstances  are  such  that  the  user  is  presumed  to 
be  permissive,  rather  than  adverse  or  under  claim  of 
right,  as  when  it  is  of  wild  and  unoccupied  land,^^  or 
is  upon  the  line  of  a  private  way  which  is  open  to  tho 
public.-" 

(f)   Continuity  of  user.     The  user  of  the  land 


by  the  public  must  be  substantially  continuous  through 
out  the  prescriptive  period,  in  order  to  create  a  public 
right,^^  and  consequently,  if  the  landowner,  during  such 
period,  erects  a  fence  or  other  structure  whii:'h  pre- 
vents a  continuance  of  the  user,  no  right  is  acquired.^^ 


25.  Frink  v.  Stewart,  94  N.  C. 
484;  Stickley  v.  Sodus  Tp.,  131 
Mich.  510,  59  L.  R.  A.  287,  91  N. 
W.  745;  See  Rice  v.  Pershall,  41 
Wash.    73,    82    Pac.    1038. 

26.  See  Watson  v.  Board  of 
Com'rs  of  Adams  County,  38 
Wash.  662,  80  Pac.  201;  and  ante, 
this    section,    note    14. 

27.  See  Sprow  v.  Boston  & 
A.  R.  Co.,  163  Mass.  330,  39  N. 
E.  1024  and  ante,  §  533(c),  note 
15. 

28.  State  v.  Green,  41  Iowa, 
693;  City  of  Topeka  v.  Cowee, 
48  Kan.  345,  29  Pac.  560;  Jen- 
nings V.  Tisbury,  5  Gray,  73; 
Hodges  V.  West  Bloomfleld,  186 
Mich.  259,  152  N.  W.  1056;  State 
V.  Auchard,  22  Mont.  14,  55  Pac. 
361;  Bletk  v.  Keller,  73  Neb.  826, 
103  N.  W.  674;  Bayard  v.  Stand- 
ard on  Co.,  38  Ore.  438.  63  Pac. 
614;  In  re  Twenty-second  Ave. 
Southwest,  72  Wash.  99,  129  Pac. 
884;  Town  of  Rolling  v.  Emrich, 
122  Wis.   134,   99   N.  W.   464. 

29.  See  Jones  v.  Phillips,  59 
Ark.  35,  26   S.  W.  386;    O'ConneU 


V.  Bowman,  45  111.  App.  654; 
Weld  V.  Brooks,  152  Mass.  297, 
25  N.  E.  719;  Jones  v.  New 
York,  N.  H.  &  H.  R.  Co.,  211  Mass. 
521,  98  N.  E.  607;  Rolling  v. 
Emrich,  122  Wis.  134,  99  N.  W. 
464. 

It  is  occasionally  said  that  the 
placing  of  such  an  obstacle  to 
travel  prevents  a  prescriptive 
highway  because  it  shows  an  in- 
tention on  the  part  of  the  land- 
owner to  exclude  the  public  user. 
Harper  v.  State,  109  Ala.  66  19 
So.  901;  Whaley  v.  Wilson  120 
Ala.  992,  24  So.  855;  Shellhouse 
V.  State,  110  Ind.  509,  11  N.  E. 
484;  Village  of  Peotone  v.  Illinois 
Cent.  R.  Co.,  224  HI.  101  79  N. 
E.  678;  Campau  v.  City  of  Detroit, 
104  Mich.  560,  62  N.  W.  718; 
Shell  V.  Poulson,  23  Wash.  535, 
63  Pac.  204;  Megrath  v.  Nicker- 
son,  24  Wash.  235,  64  Pac.  163. 
In  re  Twenty-Second  Ave.  South- 
west, 72  Wash.  99,  129  Pac.  884; 
Jones  V.  Davis,  35  Wis.  376.  This 
means,  it  appears,  that  such  ac- 
tion  on  the  part  of  the  landlord 


§  533] 


Presceiption. 


2087 


The  fact,  however,  that  he  makes  the  exercise  of  the 
user  more  difficult,  as  by  erecting  a  fence  with  a 
gate  or  bars  therein,  does  not  of  itself  interrupt  the 
user,^*^  though  its  erection,  coupled  with  the  fact  that  it 
is  allowed  by  the  jDublic  to  remain,  would  seem  to  be 
evidence  tending  to  show  that  the  user  is  not  adverse.'^ 
It  has  been  said  that  the  public  user  is  not  suf- 
ficient if  it  is  always  contested  by  the  owner.^-  Just 
what  this  means  does  not  clearly  appear.  A;.]  is  re- 
marked above,  the  fact  that  the  owmer  erects  gates  or 
bars,  which  operate  to  some  extent  to  interfere  with 
travel,  and  which  nevertheless  are  allowed  by  the 
public  to  remain,  tends  to  show  that  the  user  by  the 
public  is  not  "as  of  right,"  but  is  permissive  only, 
and  the  fact  that  the  owner  places  notices  to  that 
effect  on  the  gates,  which  are  also  allowed  to  remain''^ 


excludes  any  inference  of  acquies- 
cence in  the  user  as  a  basis  for 
prescription.  In  Chicago  v.  Gait, 
224  111.  421,  79  N.  E.  701,  verbal 
protests  appear  to  be  regarded 
as    sufficient    for    this    purpose. 

30.  Mills  &  Allen  v.  Evans, 
100  Iowa,  712,  69  N.  W.  1043; 
Hinks  V.  Hinks,  46  Me.  423:  Weld 
V.  Brooks,  152  Mass.  297,  25  N. 
E.  719;  Cunningham  v.  San  Saba 
County,  11  Tex.  Civ.  App.  557,  32 
S.  W.  928,  33  S.  W.  892.  But 
see  Berry  v.  St.  Louis  &  S.  F. 
R.  Co.,  124  Mo.  App.  436,  101  S. 
W.    714. 

31.  See  Jones  v.  Phillips,  59 
Ark.  35,  26  S  W.  386;  Huffman 
V.  Hall,  102  Cal.  26,  36  Pac.  417; 
Township  of  IMadison  v.  Galla- 
gher, 159  111.  105,  111.  105,  42  N.  E. 
316;  State  v.  Cipra,  71  Kan.  714, 
81  Pac.  488  (semhle) ;  Louisville  & 
I.  R.  Co.  v.  Bailey,  33  Ky.  L. 
Rep.   179,   109    S.   W.   336    (locked 


gates  opened  on  request) ;  Easter 
V.  Overlea  Land  Co.  of  Balti- 
more, 129  Md.  627,  99  Atl.  893; 
Lewis  V.  City  of  Portland,  25 
Ore.  133,  22  L.  R.  A.  736,  42  Am. 
St.  Rep.  772,  35  Pac.  256;  Goelet 
V.  Board  of  Aldermen,  14  R.  I. 
295.  But  see.  apparently  to  the 
contrary,  Weld  v.  Brooks,  152 
Mass.  297,  25  N.  E.  719;  Webster 
v.  Lowell.  142  Mass.  234,  8  N.  E. 
54.  Compare  Pitser  v.  McCreery, 
172  Ind.  663,  88  N.  E.  303,  89 
N.  E.  317.  That  a  gate  to  keep 
in  cattle  does  not  prevent  pre- 
scription for  a  highway,  see  Clark 
v.  Hull,  184  Mass.  164. 

32.  Moragne  v.  City  of  Gads- 
den, 170  Ala.  124,  54  So.  518. 
And  see  City  of  Chicago  v.  Gait, 
224   111.   421,   79  N.   E.   701. 

33.  See  Megrath  v.  Nickerson, 
24  Wash.  235,  64  Pac.  163;  In  re 
Southwest  Twenty  Second  Ave.  72 
Wash.  99,  129  Pac.  884. 


2088  Eeal  Propeety.  [§  533 

is  perhaps  additional  evidence  to  the  same  effect.^* 
But  whether  the  action  of  the  owner  in  contesting  the 
public  user  merely  by  posting  warnings  not  to  tres- 
pass would  be  sufficient  to  prevent  the  acquisition  of 
the  right  by  the  public,  would  seem  to  be  open  to  ques- 
tion. If  it  is  impossible  to  prevent  the  public  travel 
without  interfering  with  travel  by  those  rightfully  en- 
titled, the  safer  course  for  him  to  adopt  would  seem  to 
be  the  construction  of  gates. 

(f )    Recognition  by  municipal  authorities.    In 

connection  with  the  question  of  the  establishment  of 
a  highway  by  length  of  user,  reference  is  frequently 
made  to  the  consideration  whether  the  existence  of 
such  a  highway  has  been  recognized  by  the  municipal 
authorities,  by  the  making  of  repairs  or  otherwise,  and 
the  cases  appear  to  be  in  a  state  of  considerable  con- 
fusion in  this  regard.  Some  cases  assert  the  view  that 
such  recognition  is  not  necessary  to  the  existence  of 
a  prescriptive  highway.^ ^  In  so  far  as  such  recognition 
may  be  regarded  as  a  prerequisite  to  the  imposition  of 
a  liabilty  upon  the  municipality  for  physical  defects 
in  the  highway,^*^  such  a  view  appears  to  accord  with 
the  rule  that  an  acceptance  of  the  dedication  of  land 
as  a  highway  cannot  be  inferred  merely  from  public 
user,  for  the  purpose  of  imposing  a  liability  upon  the 
municipality.''''    But  in  so  far  as  public  user  is,  for  other 

34.  Tarpey  v.  Veith,  22  Cal.  67  Atl.  225;  Porter  v.  Johnson,— 
App.  289,  134  Pac.  367.  Tex.    Civ   App— .   151   S.   W.    599; 

35.  Carter  v.  Walker,  186  Ala.  Seattle  v.  Smither's  37  Wash. 
140,  65  So.  170:  Madison  Tp.  119,  79  Pac.  615;  Mason  County 
V.  Gallagher,  159  111.  105,  42  N.  v.  McReavy,  84  Wash.  9,  145  Pac. 
E.  316:   Menard  County  Road  Dis-  993. 

trict    V.    Berbe,    231    111.    147,    83  36.     See   State   v.   Kent   County 

N.    E.    131;    Jennings  v.    Tisbury,  Com'rs,   83   Md.   377,    33  L.   R.  A. 

5    Gray    (Mass.)     73;     Bassett    v.  291,  35  Atl.  62;   Downend  v.  City 

Harwich,    180    Mass.    585.    62    N.  of    Kansas    City,    156    Mo.    60,    51 

E.    974;    Smith    v.    Nofsinger,    86  L.  R.  A.  170,  56  S.  W.  902;    State 

Neb.  834,  126  N.  W.  659  (sembJe);  v.    Dry    Fork    R.    Co.,    50    W.    Va. 

Stevens  v.  Nashua,  46  N.  H.  193;  235,   40    S.   E.   447. 

Harriman  v.  Moore,  74  N.  H.  277,  37.     Ante,  §  483,  note  81. 


§  533] 


Prescbiption. 


2089 


purposes,  ordinarily  regarded  as  sufficient  evidence 
of  acceptance  of  a  dedication,^^  it  would  seem  that,  for 
such  other  purposes,  any  acceptance  or  recognition  by 
the  municipal  authorities  might  be  dispensed  with  when 
there  has  been  a  public  user  for  the  prescriptive  period. 
Nevertheless  the  recognition  of  the  highway  by  the 
municipal  authorities  is,  in  a  number  of  jurisdictions, 
regarded  as  necessary  in  any  case  to  make  a  highway 
by  prescription.^^  In  some  of  the  cases  in  which  this 
necessity  is  asserted,  no  reason  is  stated,  vx^hile  in 
some  it  is  said  or  intimated  that  this  is  necessary  in 
order  to  show  a  claim  of  right  in  the  public.'* °  Adopt- 
ing the  latter  view,  the  recognition  would  have  to  take 
,  place  at  the  commencement  of  the  prescription  period 
and   continue   throughout   such   period.     Conceding,   as 


38.  Ante,    §    483,    note    80. 

39.  For  statements  or  sugges- 
tions that  such  recognition  is 
necessary,  see  Southern  R.  Co. 
V  Combs,  124  Ga.  1004,  53  S.  E. 
508;  Louisville  &  N.  R.  Co.  v. 
Hames,  135  Ga.  67,  68  S.  E.  805; 
Nichols  V.  State,  89  Ind.  298; 
State  V.  Horn,  35  Kan.  717,  12  Pac. 
148;  Stickley  v.  Sodus  Tp.,  131 
Mich.  510,  59  L.  R.  A.  287,  91  N. 
W.  745;  State  v.  Auchard,  22 
Mont.  14,  55  Pac.  361;  Speir  v. 
Town  of  Utrecht,  121  N.  Y.  420, 
24  N.  E.  692;  Smith  v.  Smythe, 
197  N.  Y.  457,  35  L.  R.  A.  (N.  S.) 
524,  90  N.  E.  1121;  Boyden  v. 
Achenbech,  79  N.  C.  539;  State 
V.  Lucas,  124  N.  C.  804,  32  S.  E. 
553;  Ridings  v.  Marion  County, 
50  Ore.  30,  91  Pac.  22;  Gaines 
V.  Merryman,  95  Va.  660,  29  S. 
E.  738;  Way  v.  Fellows,  91  Vt. 
326,  100  Atl.  682;  State  v.  Dry 
Fork  R.  Co.,  50  W.  Va.  235,  40 
S.    E.    447. 

Occasionally  the  statute  re- 
quires  that   the   road   be   worked 


by  the  county  authorities.  See 
Rose  V.  Nolen,  166  Ky.  336,  179 
S.  W.  229;  Rauch  Co.  v.  Emery, 
191  Mich.  188,  157  N.  W.  419; 
Town  of  Nells  v.  Sullivan,  125 
Minn.  353,  147  N.  W.  244;  Bar- 
nard Realty  Co.  v.  City  of  Butte, 
48  Mont.  102,  136  Pac.  1064; 
Meservey  v.  Gulliford,  14  Idaho, 
133,    93    Pac.    780. 

40.  State  v.  Green,  41  Iowa, 
093;  Stickley  v.  Sodus  Tp.  131 
Mich.  510,  515,  59  L.  R.  A.  287, 
91  N.  W.  745;  Wills  v.  Reid,  86 
Miss.  446,  38  So.  793;  Hill  v 
McGinnis,  64  Neb.  187,  89  N.  W. 
783;  People  v.  Osborn,  84  Hun. 
441,  32  N.  Y.  Supp.  358;  Stewart 
V.  Frink,  94  N.  Car.  487;  Blute 
v.  Scribner,  23  Wis.  357;  Marsh- 
field  Land  &  Lumber  Co.  v.  John 
Week  Lumber  Co.,  108  Wis.  268, 
84  N.  W.  434;  Parrott  v.  Stewart, 
05  Ore.  254,  132  Pac.  523;  Board 
of  Com'rs  Sheridan  County  v. 
Patrick,  18  Wyo.  130,  104  Pac. 
531,   107  Pac.  748. 


2090 


Eeal  Peoperty. 


[§  533 


suggested  above,  that  user  under  claim  of  right  means 
merely  adverse  user/^  and  that  user  is  ordinarily  to 
be  presumed  to  be  adverse  in  the  absence  of  evidence  to 
the  contrary,^2  jt  does  not  seem  that  recognition  by  the 
municipal  authorities  should  be  regarded  as  essential, 
though  the  fact  of  such  recognition  throughout  the 
prescriptive  period  is  the  strongest  sort  of  evidence 
that  the  user  is  not  permissive  merely.^ ^ 

(g)   Width  of  highway.     Ordinarily  the  width 


of  a  highway  based  upon  prescription  is  determined  by 
the  extent  of  the  user  during  the  prescriptive  period.^* 
Other  considerations,  however,  are  frequently  effective 
to  extend  the  exterior  limits  of  the  highway  beyond  the 
line  of  actual  travel.^^  If  the  user  is  based  upon  invalid 
proceedings  for  the  location  of  a  highway,  the  width 
named  in  such  invalid  location  will  ordinarily  control*^ 
and  enclosures,  such  as  fences  or  buildings,  along  the 


41.  Ante,    §    533(d),    note    20. 

42.  Ante,    §    504. 

43.  Smith  v.  Nofsinger,  86 
Neb.  834,  126  N.  W.  659;  Wecker 
V.  Dommer,  97  Neb.  728,  151  N. 
W.  157;  O'Connell  v.  Chicago 
Terminal  Transfer  R.  Co.,  184 
III.  308,  56  N.  E.  355;  Parrott 
V.  Stewart,  65  Ore.  254,  132  Pac. 
523;  Sharp  v.  Mynatt,  1  Lea. 
(Tenn.)    375. 

44.  District  of  Columbia  v. 
Robinson,  180  U.  S.  92,  45  L.  Ed. 
440;  Goerke  v.  Town  of  Manitou, 
25  Colo.  App.  482,  139  Pac.  1049; 
Evans  v.  Bowman,  183  Ind.  264, 
108  N.  E.  956;  Anderson  v.  City 
of  Huntington,  40  Ind.  App.  130, 
81  N.  E.  223;  Meade  v.  City  of 
Topeka,  75  Kan.  61,  88  Pac.  574; 
Scheimer  v.  Price,  65  Mich.  638, 
32  N.  W.  873;  Wayne  County 
Sav.  Bank  v.  Stockwell,  84  Mich. 
586,  22  Am.  St.  Rep.  708,  48  N. 
W.    174;     Arndt    v.     Thomas,    93 


Minn.  1,  100  Am.  St.  Rep.  378, 
106  Am.  St.  Rep.  418;  State  v. 
Auchard,  22  Mont.  14,'  55  Pac. 
361;  Talmage  v.  Hunting,  29  N. 
Y  447;  Silverton  v.  Brown,  63 
Ore.  418,  128  Pac.  45;  Morse  v. 
Ranno,  32  Vt.  600;  Prince  Wil- 
liam County  V.  Manuel,  118  Va. 
716,  88  S.  E.  54;  Upper  v.  Lowell, 
7  Wash.  460,  35   Pac.   363. 

45.  See  Bayard  v.  Standard 
Oil  Co.,  38  Ore.  438,  63  Pac. 
614. 

46.  Pillsbury  v.  Brown,  82  Me. 
450,  19  At.  858,  9  L.  R.  A.  44; 
Marchand  v.  Maple  Grove,  48 
Minn.  271,  51  N.  W.  606;  State 
V.  Auchard,  22  Mont.  14,  55  Pac. 
361;  Bayard  v.  Standard  Oil  Co., 
38  Ore.  438,  63  Pac.  614;  Upper 
V.  Lowell,  7  Wash.  460,  35  Pac. 
363;  Konkel  v.  Pella,  122  Wis. 
143,  99  N.  W.  453.  But  the 
width  named  in  the  invalid  loca- 
tion  will   not   control   as   against 


533] 


Prescbiption. 


2091 


line  of  the  highway,  maintaiued  by  the  owners  of  the 
land,  will  be  given  very  great  weight  in  detf  rmining 
the  limits  of  the  highway.*'  Even  where  the  width  is 
regarded  as  measured  b}^  the  user,  it  is  not  necessarily 
to  be  confined  to  the  beaten  track  or  thread  of  actual 
travel,  it  being  essential  that  those  using  the  road  have 
sufficient  room  to  pass  and  repass,-*^^  and  occasionally  a 
greater  width  being  required  for  the  purpose  of  proji- 
erly  improving  the  road.*''  The  question  of  width  is  usu- 
ally regarded  as  one  of  fact  for  the  jury,^"'^  and  statutory 
provisions  as  to  the  width  of  highways  are  not  ordi- 
narily regarded  as  controlling.^^  Occasionally  it  has  been 
said  that  the  public  user  is  to  be  regarded  as  evidence 


one  whose  fences  blocked  part 
of  such  width.  Samuel  v.  Sher- 
man,  170   in.   265,   48   N.   E.   576. 

47.  Middletown  v.  Glenn,  278 
111.  149,  115  N.  E.  847;  Evans 
V.  Bowman,  183  Ind.  264,  108  N. 
E.  956;  Tilton  v.  Wenham,  172 
Mass.  407,  52  N.  E.  514;  Wash- 
ington Borough  V.  Steiner,  25 
Pa.  Super.  Ct.  392;  Whitesides 
V.  Green,  13  Utah.  341,  57  Am. 
St.  Rep.  740,  44  Pac.  1032.  See 
Watz  V.  Sunderland,  147  Mich. 
96,  110  N.  W.  507;  Kendall  Smith 
Co.  V.  Lancaster  Co.,  84  Neb. 
654,    121    N.   W.    960. 

48.  Davis  v.  City  of  Clinton, 
58  Iowa,  389,  10  N.  W.  768; 
Tilton  V.  Wenham,  172  Mass.  407, 
52  N.  E.  514;  Arndt  v.  Thomas, 
93  Minn.  1,  106  Am.  St.  Rep. 
418,  100  N.  W.  378;  State  v. 
Morse,  50  N.  H.  9;  Whitesides 
V.  Green,  13  Utah,  341,  57  Am. 
St.  Rep.  740,  44  Pac.  1032;  Bart- 
lett  v.  Beardmore,  77  Wis.  356, 
46   N.   W.   494. 

49.  Marchand  v.  Town  of 
Maple  Grove,  48  Minn.  271,  51 
N.   W.   606;    Whitesides  v.   Green, 


13    Utah,    341,    57    Am.    St.    Rep. 
740,   44   Pac.    1032. 

50.  Meservey  v.  Gulliford,  14 
Idaho,  133,  93  Pac.  780;  Davis 
V.  City  of  Clinton,  58  Iowa,  389, 
10  N.  W.  768;  Lawrence  v.  Mt. 
Vernon,  35  Me.  100;  Arndt  v. 
Thomas,  93  Minn.  1,  106  Am.  St 
Rep.  418,  100  N.  W.  378;  State 
V.  Morse,  50  N.  H.  9;  Bayard  v. 
Standard  Oil  Co.,  38  Ore.  438, 
63  Pac.  614;  Burrows  v.  Guest, 
5  Utah,  91,  12  Pac.  847;  White- 
sides  V.  Green,  13  Utah,  341,  57 
Am.  St.  Rep.  740,  44  Pac.  1032; 
Hamp  V.  Pend  Oreille  County, 
102    Wash.    184,    172    Pac.    869. 

51.  Goerke  v.  Town  of  Mani- 
tou,  25  Colo.  App.  482,  139  Pac. 
1049;  Davis  v.  City  of  Clinton, 
58  Iowa,  389,  10  N.  W.  768.  Com- 
pare Yakima  County  v.  Conrad 
26  Wash.  155,  66  Pac.  411.  Such 
a  statutory  provision  could  not 
extend  the  width  as  against  an 
owner  of  land  adjoining  the  line 
of  travel,  whose  land  was  fenced. 
Watz  V.  Sunderland,  147  Mich. 
96,    110   N.   W.   507. 


2092  Eeal  Peopeety.  [§  533 

of  a  right  in  the  public  to  use  the  land  to  the  usual 
width  of  a  highway,  by  widening  the  travelled  path,  or 
otherwise,  as  the  exigencies  of  the  public  rnay  re- 
quire.^^ 

52.     Sprague   v.   Wait,   17   Pick.  494.      See    Meservey   v.    Gulliford, 

(Mass.)    309;    Coffin  v.  Plymouth,  14  Idaho,  133,  93  Pac.  78;    Arndt 

49    N.    H.     173;     Kendall     Smith  v.    Thomas,    93    Minn.    1,    100    N. 

Co.    V.     Lancaster     Co.,     84     Neb.  W.    378,    106    Am.    St.    Rep.    418; 

G54,    121    N.    W.    960;    Bartlett   v.  City    of    Olympia    v.    Lemon,    — 

Beardmore,  77  Wis.  356,  46  N.  W.  Wash.  — ,   161   Pac.   363. 


CHAPTER  XXV. 

ACCRETION. 

§  534.  General   considerations. 

535.  As  rule  of  law  or  rule  of  construction. 

536.  Applicable  only  to  land  above  water. 
53?.  Sudden  and  perceptible  changes. 

538.  Accretion  artificially  produced. 

539.  Land  appearing  in  place  of  land  disappearing. 

540.  Accretions  subject  to  existing  incumbrances. 

541.  Vested  right  in  future  accretions. 

542.  Accretions  to  island. 

543.  Apportionment  of  accretions. 

544.  Formation  of  new  islands. 

§  534.  General  considerations.  When  the  line  be- 
tween water  and  the  land  bordering  thereon  is  changed 
by  the  gradual  deposit  of  alluvial  soil  upon  the  margin 
of  the  water  or  by  the  gradual  recession  of  the  water, 
the  owner  of  the  land  ordinarily  becomes  entitled  to 
the  new  land  thus  formed;'  and,  conversely,  in  case 
land  bordering  on  water  is  gradually  washed  away,  or 
the  water  otherwise  gradually  encroaches  upon  the 
land,  the  owner  ordinarily  loses  the  land  which  has 
thus  been  encroached  on  by  the  water,  unless  he  re- 
tains its  ownership  as  having  previously  been  entitled 

1.     Rex    V.    Yarborough,    3    B.  Iowa,    241,   35    Am.    St.    Rep.    304, 

&    C.    91;    Gifford   v.    Yarborough,  50  N.  W.  983;  Linthicum  v.  Coan, 

5    Bing.    163;       Jefferis    v.    East  64    Md.     439,     54    Am.     St.     Rep. 

Omaha   Land   Co.,   134   U.   S.   178,  775,    2    Atl.    826;    Widdecombe    v. 

33  L.  Ed.  872;  Hagan  v.  Campbell,  Chiles,   173   Mo.   195,   61   L.   R.  A. 

8  Port.  (Ala.)  9,  3:5  Am.  Dec.  267;  309,   96   Am.   St.   Rep.   507,    73    S. 

St.   Louis,   I.  M.   &   S.   Ry.   Co.  v.  W.    444;    Saunders    v.    New    York 

Ramsey,  53  Ark.  314,  8  L.  R.  A.  Cent.   &   H.   R.   R.   Co,   144   N.   Y. 

559,   22   Am.    St.   Rep.    195,    13    S.  75,     26    L.    R.    A.    378,    43    Am. 

W.  931;   Fillmore  v.  Jennings,  78  St.  Rep.  729,  38  N.  B.  992;   Caul- 

Cal.    634,    21    Pac.    536;     Chicago  field    v.    Smyth,    69    Ore.    41,    138 

Dock   &   Canal  Co.   v.   Kinzie,   93  Pac.    227;     Fulton    v.    Frandolig, 

111.  415;   Coulthard  v.  Stevens,  84  63    Tex.    330. 

(2093) 
R.  P.— 57 


2094  Real  Propeety.  [§  535 

to  the  land  under  the  particular  body  or  stream  of 
water,  or  that  part  thereof.^ 

When  one  acquires  additional  land  by  the  deposit 
of  soil,  he  is  said  to  acquire  it  by  accretion  or  alluvion, 
When  he  acquires  it  by  the  recession  of  the  water,  he 
is  more  properly  said  to  acquire  it  by  reliction  (or 
dereliction),  but  the  expression  accretion  is  not  infre- 
quently applied  in  such  a  case  as  Avell  as  in  tliat  first 
referred  to,  and  it  will,  for  the  sake  of  convenience,  be 
so  applied  in  the  course  of  the  following  remarks.  The 
gradual  loss  of  land  by  the  action  of  the  water  is 
occasionally  referred  to  as  "erosion,"  while  its  sudden 
and  violent  removal  or  separation  by  such  action  is 
spoken  of  as  "avulsion." 

§  535.     As  rule  of  law  or  rule  of  constniction.   The 

legal  effect  of  a  change  in  the  line  between  land  and 
water,  such  as  is  above  referred  to,  is  frequently-  re- 
garded as  based  on  positive  rules  of  law,  that  is,  it  is 
said  in  effect  that  one  acquires  land  whi-^h  is  added 
to  his  land  by  the  gradual  action  or  recession  of  water, 
and  that  likewise  one  loses  land  which  is  gradually 
washed  away  or  encroached  upon  by  the  water.  It 
appears,  however,  to  be  open  to  question  whether  there 
are,  properly  speaking,  any  such  rules  of  law,  and 
whether,  so  far  as  the  legal  effects  of  such  physical 
changes  are  concerned,  they  are  not  rather  the  result 
of  a  general  rule  for  the  ascertainment  of  boundaries, 
a  rule  of  construction,  in  eifect,  that  if  the  boundary 
of  land  is  determinable  with  reference  to  the  sea  or 
any  body  or  stream  of  water,  the  boundary  is  pre- 
sumably intended  to  vary  as  the  particular  physical 
feature   referred  to  may  vary,  provided  the   variation 

2.     In  re  Hull  &  Selby  Ry.  Co.,  Mo.    337,    50    Am.    St.    Rep.    450, 

5    Mees.    &    W.    327;     Warren    v.  31   S.  W.   592;    Bouvier  v.   Strick- 

Chambers,    25    Ark.    120,    4    Am.  lett,   40   Neb.   792,   59   N.  W.   550; 

Rep.    23;     Steele    v.    Sanchez,    72  Town  of  East  Hampton  v.   Kirk, 

Iowa,    65,    2    Am.    St.    Rep.    233,  84  N.  Y.  218;   Wilson  v.  Shiveley, 

33  N.  W.  366;   Cox  v.  Arnold,  129  11  Ore.  215,  4  Pac.  324. 


§  535]  Accretion.  2095 

is  gradual.  It  is  ordinarily  immaterial,  as  regards 
results,  which  view  is  adopted,  whether,  for  instance, 
it  is  said  that  one  whose  land  bounds  on  the  sea  gains 
such  land  as  may  be  left  by  the  gradual  recession  of 
the  sea  and  loses  such  land  as  may  be  encroached  upon 
by  the  sea,  or  whether  it  is  said  that  his  boundary  is 
presumed  to  be  intended  to  change  as  the  sea  changes. 
In  some  cases,  however,  and  for  some  purposes,  it  is 
material. 

In  the  first  place,  if  we  recognize  a  distinct  doc 
trine  of  accretion,  in  effect  a  rule  of  law  that  an  owner 
of  land  shall  have  whatever  adjacent  land  may  be 
created  by  the  gradual  action  or  change  of  the  water, 
the  intention  of  the  parties  interested  in  the  delimita- 
tion of  the  boundaries  of  the  land  is  immaterial.  In 
the  presence  of  such  a  doctrine,  the  fact  that,  in  con- 
veying the  projDerty  to  its  present  owner,  the  grantor 
expressly  retained  all  future  accretions,  would  be  im- 
material, as  would  be  the  fact  that  the  conveyance,  in 
describing  the  land,  made  no  reference  to  the  body  or 
stream  of  water,  or  to  any  incident  or  characteristic 
thereof.  We  do  not  find  any  case  which  explicitly  de- 
cides that  one  can,  in  conveying  property  bounding  on 
M^ater,  retain  any  subse(iuent  accretions  thereto,  but 
there  are  dicta  to  that  effect."'  The  effectiveness  of 
intention  in  this  regard  is  also  indicated  by  jud'cial  as- 
sertions that  when  the  boundary  is  fixed  by  the  deed  at 
a  specified  line  without  reference  to  the  water,  the 
grantee  cannot  claim  accretions  beyond  such  line.* 
And  in  accord  with  this  view  are  occasional  decisions 
denying  any  right  to  accretions  in  favor  of  land  bound- 
ed on  the  edge  of  an  artificial  pond,  on  the  ground  that 

3.  People  ex  rel.  Burnham  v.  43,  88  S.  W.  832;  Bristol  v.  Car- 
Jones,  112  N.  Y.  597,  20  N.  E.  roll  County,  95  111.  84;  Swerin- 
577;  Minneapolis  Trust  Co.  v.  gen  v.  St.  Louis,  151  Mo.  348, 
Eastman,  47  Minn.  301,  50  N.  52  S.  W-  346;  Frank  v.  Goddin, 
W.  82,  930;  Frank  v.  Goddin.  193  Mo.  395,  112  Am.  St.  Rep. 
193  Mo.  395,  112  Am.  St.  Rep.  423,  91  S.  W.  1057;  Volcanic 
493,   91   S.  W.   1057.  Oil    and    Gas     Co.    v.    Chaplin,    27 

4.  Perry     v.     Sadler,    76     Ark.  Ont.  L.  Rep.  34,  484. 


209G  Real  Property.  [^  535 

the  intention  in  naming  such  boundary  was  to  convey 
land  only  extending  to  the  line  of  such  edge  as  it  then  ex- 
isted.^-'' The  question  whether  there  is  a  distinct  doc- 
trine of  accretion,  or  whether  the  so  called  doctrine  is 
merely  a  rule  for  the  ascertainment  of  boundaries  on  wa- 
ter, appears  to  be  clearly  presented  by  cases  involving 
the  right  of  one,  whose  non  riparian  land  has  become 
riparian  by  the  gradual  encroachment  of  the  water,  to 
claim  land  subsequently  formed  by  the  action  of  the 
water.  In  such  a  case,  the  intention  of  the  grantor  of 
the  present  proprietor,  or  of  some  person  anterior  to 
him  in  the  chain  of  title,  was  to  convey  land  extending 
only  to  a  boundary  away  from  the  water,  and  conse- 
quently if,  because  his  land  has  become  riparian,  he  is 
given  the  benefit  of  accretions  thereto,  he  is  in  efifect 
given  what  it  was  never  the  intention  of  his  predecessor 
in  title  to  convey.  If  there  is  a  rule  of  law  that  ac- 
cretions belong  to  the  rii^arian  proprietor,  he  'is  en- 
titled to  the  accretions,^  while  otherwise  he  is  not  so 
entitled.^  The  most  extreme  application  of  the  former 
view  appears  to  be  found  in  a  Connecticut  case,'^  in 
which  it  was  decided  that  w^hen  the  land  of  A.  which 
was  originally  on  the  East  side  of  a  river,  but  was  not 

4a.     Cook    V.     McClure,     58     N.  6.     That   he    is    not   entitled   to 

L.    437,    17    Am.    Rep.    270;    Eddy  the    accretions    in    such    a    case, 

V.    St.   Mars,    53   Vt.    462,   38   Am.  see   Ocean  City  Ass'n  v.   Shriver, 

Rep.    395;     Holden    v.    Chandler,  64    N.    J.    L.    550,    51    L.    R.    A. 

61   vt.   291,   18  Atl.  310.  425,    46    Atl.    690;    Allard   v.   Cur- 

5.     That   he   is   entitled   to   the  ran,    — S.    D.— ,    168    N.    W.    761; 

accretions    in    such    a    case,    see  Stockley  v  Cissna,  119  Fed.  Rep. 

Peuker    v.    Kanter,    62    Kan.    363,  812;      3    Farnham,    Waters    at    p. 

63    Pac.    617;    Crandall    v.    Allen,  2498.       See     also    Gilbert    v.    El- 

118    Mo.    403,    22    L.    R.    A.    591,  dridge,    47    Minn.    210,    13    L.    R. 

24    S.    W.    172;     Widdecombe    v.  A.    511,    49    N.    W.    679;    Maw    v. 

Chiles,  173   Mo.   195,   61  L.  R.  A.  Bruneau,  37   S.  D.  75,   156  N.  W. 

309,   96    Am.    St.   Rep.    507,    73    S.  792;     Volcanic     Oil     &     Gas     Co. 

W.  444;  Welles  v.  Bailey,  55  Conn.  v.    Chaplin,    27    Out.    L.    Rep.    34, 

292,   3    Am.    St.    Rep.    48,    10    Atl.  484. 

565;     editorial  notes  in  16  Harv.  7.     Welles   v.    Bailey,    55   Conn. 

Law  Rev.  527,  26  Id.  185.  292,    3    Am.    St.    Rep.    48,    10    Atl. 

565. 


§  535]  Accretion.  2097 

described,  in  the  conveyance  to  him,  with  reference  to 
the  river,  came  to  lie  on  the  West  side,  by  reason  of 
a  gradual  Eastward  change  in  the  location  of  the  river, 
the  fact  that  it  became,  in  the  course  of  the  change, 
riparian  land  on  the  West  side  of  the  river,  entitled  its 
owner  to  claim  by  way  of  accretion  all  the  land  over 
which  any  further  Eastward  change  in  the  river  caused 
it  to  pass.  Applying  such  a  doctrine,  if  there  were  a 
number  of  lots,  no  matter  how  many,  over  which  a 
river  gradually  passed,  in  the  course  of  a  transverse 
change  in  its  location,  the  owner  of  the  lot  on  which 
tlie  river  first  impinged,  it  being  made  thereby  riparian 
land,  would  be  entitled  to  all  the  lots  over  which  the 
subsequent  changes  in  the  river  caused  it  to  pass. 
The  law  in  regard  to  the  effect  on  property  rights 
in  land  of  a  gradual  change  in  the  location  of  water  is 
adopted  by  the  common-law  writers  from  the  civil  law,* 
and  that  in  the  latter  system  the  so-called  doctrine  of 
accretion  or  alluvion  was,  properly  considered,  a  rule 
for  ascertaining  the  intention  as  to  the  boundaries  of 
land,  may  perhaps  be  inferred  from  the  fact  that  it  had 
no  application  when  the  limits  or  boundaries  of 
the  lands  were  fixed,  that  is,  when  they  were  what 
were  known  as  agri  Umitati.^  A  like  idea,  that 
the  doctrine  of  accretion  does  not  apply  if  the 
boundaries  of  the  land  are  fixed,  not  with  reference 
to  the  water  on  w^hich  the  land  happens  to  border,  but 
by  other  objects  or  by  measurements,  is  occasionally 
indicated  by  the  common  law  writers. ^*^ 

8.  See  per  Lindley,  J.,  in  Hunt's  Boundaries  &  Fences  (6th 
Foster  v.  Wright,  4  C.  P.  D.  438       Sd.)    47. 

at  p.  447.  10.     In    Britton,    Bk.    2,    ch.    2, 

9.  Dig.  41,  1,  16.  See  Muni-  pi.  7,  it  is  said  that  one  is 
cipality  No.  2  v.  Orleans  Cotton  «;ititled  to  the  increase  "if 
Press,  18  La.  122,  36  Am.  Dec.  certain  bounds  are  not  found." 
624;  Smith  v.  St.  Louis  Public  And  so  it  is  said  in  Sir  Mat- 
Schools,  30  Mo.  290;  Frank  v.  thew  Hale's  De  Jure  Maris,  ch. 
Godden,  193  Mo.  395,  112  Am.  St.  1,  that  it  is  immaterial  that  the 
Rep.  443,  1  S.  W.  1057;  Salkow-  alteration  be  by  insensible  de- 
ski's    Private    Roman    Law,    399;  grees,   if   "there   be   other    known 


2098  Real  Property.  [§  535 

Adopting  the  view  of  the  subject  of  accretion  above 
indicated,  that  it  is,  in  the  last  analysis,  a  rule,  or 
aggregate  of  rules,  of  construction  rather  than  of  law, 
it  would  follow  that  there  exists,  in  the  case  of  land 
bounding  on  water  the  bed  of  which  is  in  the  state,  a 
presumption  that  in  so  far  as  the  original  grant  from 
the  state,  or  any  subsequent  conveyance  in  the  chain  of 
title,  bounded  the  land  on  the  water  or  on  any  physical 
feature  incident  thereto,  it  was  the  intention  that  the 
location  of  the  boundary  should  change  as  the  line  of 
the  water,  or  of  the  specified  physical  feature,  might 
gradually  change  in  the  future.  And  so  when  the  line 
of  demarcation  between  lands  belonging  to  two  indi- 
viduals is  some  stream  or  body  of  water,  or  a  partic- 
ular feature  thereof,  such  as  the  edge  or  the  centre  of 
the  channel,  it  is  presumed  that,  in  so  bounding  the 
land,  it  was  the  intention  to  have  the  boundary  change 
as  the  particular  feature  of  the  water  referred  to  might 
thereafter  change.  That  the  rules  in  regard  to  accre- 
tion are  rules  for  the  ascertainment  of  the  boundary, 
rules  of  construction,  in  effect,  has  occasionally  been 
judicially  stated.^ ^  A  further  argument  in  favor  of 
this  view  is  to  be  found  in  the  consideration  that  when 
land  is  bounded  on  the  center  line  of  a  stream  or 
body  of  water,  the  boundary  moves  as  such  center 
line  moves,  although  in  such  case  the  doctrine  of  ac- 
cretion is  apparently  inapplicable.^^'* 

The  only  decisions  which  appear  to  be  absolutely 
opposed  to  the  view  of  the  subject  as  a  rule  for  the 
determination  of  boundaries  are  those  above  cirod^  that 
a  non  riparian  owner  becoming  a  riparian  owner  is 
entitled   to    accretions, ^^   and    several   decisions    to   the 

boundaries    as    stakes    or    extent  ers   v.    Mathis,    42    La.    Ann.    471, 

of  land."  21   Am.    St.   Rep.   38f;,   7   So.   605; 

11.     Jefferis     v.     East     Omaha  Minto    v.    Delaney,    7    Ore.    337; 

Land    Co.,    134    U.    S.    178,    33    L.  Camden     &     Atl.     Land     Co.     v. 

Ed.   872;    Chicago    Dock   &   Canal  Lippincott,  45  N.  J.  L.  405. 

Co.    V.    Kinzie,    93    111.    425;     Le  11a.     Post,    §    536,   note   21. 

Beau  V.  Given,  37  Mo.  556;   Mey-  12.     Ante,  this  section,  note  5. 


§  535]  Accretion.  2099 

effect  that  one  cannot  claim  land  as  an  accretion  which 
first  formed  as  a  bar  in  the  stream,  and  subsequently 
became  attached  to  the  mainland  by  the  gradual  filling 
in  of  the  intervening  space. ^^'  As  regards  these  latter 
decisions,  the  view  might,  it  is  submitted,  more  prop- 
erly be  taken,  that  when  land  is  conveyed  as  bounding 
on  the  edge  of  a  stream,  or  on  the  seashore,  it  is  to 
be  regarded  as  continuing  so  to  bound,  irrespective  of 
the  direction  of  the  accretion  which  causes  a  gradual 
change  in  the  position  of  the  boundary  named.^"*  The 
owner  of  the  mainland  is  not  entitled  to  the  accretions 
to  an  island,  and  there  might  consequently  arise,  on 
occasion,  a  question  of  some  difficulty  whether  a  partic- 
ular formation  away  from  the  shore  could  be  regarded 
as  an  island, ^^  but  there  is  quite  as  considerable  diffi- 
culty in  the  practical  application  of  the  view  that  ac- 
cretions, in  order  to  belong  to  the  owner  of  the  main- 
land, must  commence  at  the  edge  of  his  property  and 
work  outwards.  In  the  first  case,  it  is  impossible  to 
say  in  which  direction  accretions  grow,  since  bars 
ordinarily  form  beneath  the  water,  and  subsequently 
become  connected  w^ith  the  main  land  by  the  filling  up 
of  the  intervening  space,  and  there  is  no  logical  reason 
for  distinguishing  in  this  regard  between  a  bar  a  few 
inches  below  the  surface  of  the  water,  and  one  a  few 
inches  above  it.  The  question  might  furthermore  be 
suggested,  does  the  rule  that  accretions  cannot  be 
''saltatory,"  as  it  has  been  expressed,  apply  to  a  leap 
of  an  inch  or  two  inches,  and  if  not,  at  what  distance 
does  it  commence  to  apply.  Finally,  it  may  be  remark- 
ed,   the    place    of   the   inception    and   the    direction    of 

13.     Hammond  v.  Sheppard,  186  Kan.    511,   6   L.   R.   A.   N.   S.    162, 

111.    235,    78    Am.    St.    Rep.    274,  117    Am.    St.    Rep.    534,    85    Pac. 

57  N.  E.  867;    Crandall  v.  Smith,  763;    Linthicum   v.   Coan,   64    Md. 
134    Mo.    Q^?'.    3G    S.    W.    612;    De  439,   54  Am.  Rep.   75,   2  Atl.  826. 
Lassus   V.   Faherty,    164    Mo.    361,  14.     It    is    so    decided    in    King 

58  L.  R.  A.  193,  64  S.  W.  183;  v.  Young,  76  Me.  76,  49  Am.  Rep. 
Nix    V.    Pfeifer,    73    Ark.    201,    83  596. 

S.    W.    951;    Fowler   v.    Wood,    73  15.     Post,    §    542,   note   53. 


2100  Real  Propeety.  [§  536 

progress  of  a  gradual  alluvial  formation  are  ordinarily 
at  the  time  matters  of  negligible  importance  and  in- 
terest, and  the  memory  thereof  by  witnesses,  testifying 
perhaps  after  an  interval  of  a  number  of  years,  is 
peculiarly  apt  to  be  fallacious,  even  when  not  intention- 
ally false.  It  appears  to  be  undesirable  to  make  prop- 
erty rights  dependent  on  testimony  of  such  an  ordinarily 
untrustworthy  character. 

§  536.  Applicable  only  to  land  above  water.  In 
speaking  of  the  acquisition  of  land  by  accretion,  the 
courts  evidently  have  reference  to  visible  land  and  not 
to  land  covered  by  water.^"  It  would  never  be  sug- 
gested, for  instance,  when  the  bed  of  a  stream  or  body 
of  water  does  not  originally  belong  to  the  owner  of 
the  bank  or  shore,  that,  because  such  bed  is  raised  by 
an  alluvial  formation  gradually  extending  outwards 
from  his  land,  but  not  of  such  depth  as  to  appeai-  above 
the  water,  he  is  entitled  by  accretion  to  that  particular 
stratum  beneath  the  water.  On  the  other  hand,  if  the 
owner  of  the  bank  or  shore  does  own  the  bed  of  the 
stream  or  body  of  water,  or  of  part  thereof,  any  verti- 
cal addition  to  the  bed,  whether  or  not  sufficient  in  depth 
to  appear  above  the  water,  belongs  to  him,  not  by 
reason  of  the  doctrine  of  accretion,  but  because  his 
ownership  extends  upwards  as  well  as  downwards,  as 
it  does  in  the  case  of  land  absolutely  dissociated  from 
water.^^  In  other  words,  such  new  land  belongs  to 
him  merely  because  it  is  within  the  boundaries  of  his 
land,  the  limits  of  his  ownership^^ 

16.     Hess   V.   Muir,    65   Md.   586,  D.    17,    156   N.   W.    591. 

5    Atl.    540,    6    Atl.    673.      Land  17.     Ante,   §   251. 

cannot  be   acquired  by  accretion,  18.     See  St.  Louis  v.  Rutz,  138 

it  is  said,  if  it  appears  above  the  U.   S.  226,  34  L.  Ed.  941;     Mulry 

water    merely    temporarily.     Ben-  v.  Norton,  100  N.  Y.  424,  53  Am. 

nett  V.  National  Starch  Mfg.  Co.,  Rep.    206.    3    N    E.    581;    Hopkins 

103    Iowa,    207,    72    N.    W.    507;  Academy     v.     Dickson,     9     Cush. 

Sapp     V.     Frazier,     51     La.     Ann.  544;    Bussen    v.    Dickson,    97    III. 

1718,  72  Am.  St.  Rep.  493,  26  So.  App.  310;  Griffin  v.  Johnson,  161 
378;     Anderson     v.     Ray,     37     S. 


536]  AccBETiox.  2101 


As  the  courts,  in  recognizing  the  acquisition  of 
newly  formed  land,  consider  onh^  conditions  3S  they 
appear  above  the  water,  so,  in  recognizing  the  loss  of 
land  by  erosion,  so  called,  they  consider  only  conditions 
so  apparent.  That  is,  the  fact  that,  after  the  disap- 
pearance of  the  strata  which  previously  appeared  above 
the  water,  the  lower  strata  beneath  the  water  still 
remain  as  before,  as  is  usually  the  case,  is  not  con- 
sidered. The  riparian  proprietorship  is  regarded  as 
ceasing  as  to  the  low^er  strata,  so  soon  as  the  upper 
strata  disappear. 

The  consideration  above  referred  to,  that  the  doc- 
trine of  accretion  has  reference  to  visible  land  only 
and  not  to  land  covered  by  w^ater,  would  seem  to  show 
that  it  is  not  the  governing  principle  in  the  following 
cases.  When  land  is  bounded  on  the  centre  of  a  stream 
as  a  monument,^*^  the  centre  of  the  stream  is  gtill  the 
boundary,  although  the  location  thereof  is  substantially 
changed  by  the  gradual  change  of  the  bed  of  the 
stream.-*^  And  likewise,  if  one  owns  the  bed  of  a 
stream,  without  any  land  outside  the  stream,  he  con- 
tinues to  own  such  bed,  in  spite  of  any  change  in  the 
location  of  the  stream.^i  In  both  of  these  cases  the 
person  who  owns  the  bed  of  the  stream,  or  a  portion 
thereof,  acquires,  as  the  stream  moves  in  the  opposite 
direction,  the  bed,  or  a  portion  of  the  bed,  of  the 
stream  in  its  new  location,  but  this  new  acquisition, 
being  of  land  covered  by  water,  cannot  be  based  upon 

in.  377,  44  N.  E.  206;    Linthicum  W.  91;    Fowler  v.  Wood,  7.S  Kan. 

V.  Coan,  64  Md.  439,  54  Am.  Rep.  511,   6  L.   R.   A.    (N.   S.)    162,   117 

775;     State    v.    Muncie    Pulp    Co..  Am.    St.    Rep.    534,    85    Pac.    763; 

119  Tenn.   47,  104  S.  W.   437.  Cruikshanks    v.    Wilmer,    93    Ky. 

19.  Ante,   §   445:  19,    18    S    W.    1018;    Trustees    of 

20.  Nebraska  v.  Iowa,  143  U.  Hopkins  Academy  v.  Dickinson, 
S.  359,  36  L.  Ed.  186;  Wallace  9  Cush.  (Mass.)  544;  Gerrish  v. 
V.  Driver,  61  Ark.  429,  31  L.  R.  Clough,  48  N.  H.  9;  Niehaus  v. 
A.  317,  33  S.  W.  641;  Welles  v.  Shepherd,  26  Ohio  St.  40. 
Bailey,  55  Conn.  292,  3  Am.  St.  21.  Foster  v.  Wright,  4  C.  P. 
Rep.  48,  10  Atl.  565;  State  v.  Div.  438;  State  v.  Muncie  Pulp 
Livingston,   164    Iowa,   31,    145   N.  Co.,  119  Tenn.  47,  104  S.  W.  437. 


2102  Eeal  Property.  [§  537 

any  doctrine  of  accretion.  And  when,  as  occurs  in  the 
case  first  referred  to,  the  land  which  he  owns  while 
covered  by  w^ater,  remains  his  after  it  is  laid  bare  by 
the  transverse  movement  of  the  stream,  he  caimot  be 
regarded  as  newly  acquiring  such  land,  already  owned 
by  him,  upon  the  theory  of  accretion,  or  upon  any 
theory  whatsoever. 

§  537.  Sudden  and  perceptible  changes.  The  rules 
above  stated,  to  the  effect  that  the  ownership  follows,  or 
is  presumed  to  follow,  changes  in  the  location  of  the 
water,  do  not  apply  in  the  case  of  sudden  and  percepti- 
ble changes,  and  such  changes,  whether  the  land  en- 
croaches on  the  water  or  the  w^ater  encroaches  on  the 
land,  effect  no  change  in  the  ownership  of  the  lociis  in 
quoP  And  so,  if  the  middle  line  of  a  stream  is  the 
boundary  line  between  tw^o  owners,  the  boundary  line 
remains  the  same,  although,  owning  to  a  sudden  change 
in  the  location  of  the  stream,  that  line  ceases  to  be  the 
middle  line  of  the  stream.^'^  This  distinction,  when 
looked  at,  not  as  a  rule  restrictive  of  a  doctrine  of  ac- 
cretion,  and  of  a  doctrine   of  encroachment  by  water 

22.     St.   Louis   V.    Rutz,    138    U.  20    N.    C.    62,    32    Am.    Dec.    672; 

S.     26,  34   L.   Ed.   941;    Nebraska  Spigener    v.    Cooner.    8    Rich.    L. 

V.    Iowa,    143    U.    S.    359,    36    L.  (S.  C.)    301,   64  Am.  Dec.  755. 

Ed.    186;    WaUace    v.    Driver,    61  23.     Buttenuth      v.      St.     Louis 

Ark.   429,  31   L.  R.   A.   317,   33   S.  Bridge    Co.,    133    IH.    535,    5    Am. 

W.  641;    Fuller  v.   Shedd.  161  111.  St.  Rep.  545,  17  N.  E.  439:   Smith 

462,    33    L.    R.    A.    146.    52    Am.  v.    Miller,    105    Iowa,    688,    70    N. 

St.  Rep.   380,   44  N.   E.   286;    Kit-  W.    123,    75    N.    W.    499;      Sweat- 

teridge   v.    Ritter,    172    Iowa.    55,  man  v.  Holbrook.  18  Ky    L.  Rep. 

151  N.  W.  1097;   Fowler  v.  Wood.  870,     38     S.    W.     691,    39     S.    W. 

73    Kan.    511.    6    L.    R.    A.    N.    S.  258;    Rees   v.    McDaniel,    115   Mo. 

162,  117  Am.  St.  Rep.  534,  85  Pac.  145,    21    S.    W.    913;     BouVier    v. 

7G3:    Hahn    v.    Dawson.    134    Mo.  Stricklett,     40     Neb.     792,     59    N. 

581  36  S.  W.  233;    Iowa  Railroad  W.     550;     Kinkead     v.     Turgeon, 

Land    Co.    v.    Coulthard,    96    Neb.  74    Neb.     573,    580,    1    L.    R.    A. 

607,    148    N.    W.    328;     Mulry    v.  (N.     S.)     762,     7     L.    R.     A.     (N. 

Norton,    100    N.    Y.    424,    53    Am.  S.)     316,    121    Am.    St.    Rep.    740, 

Rep.  206,  3  N.  E.  581;  In  re  City  13  Ann.  Cas.  43,  104  N.  W.  1061, 

of  Buffalo,   206   N.   Y.   319,   99   N.  109   N.   W.    744:    State  v.   Muncie 

E.    850;    Den    d    Lynch   v.   Allen,  Pulp    Co.,    119    Tenn.    47.    104    S. 


§  537]  AccEETTON.  2103 

upon  the  land,  but  as  a  limitation  upon  a  rule  of  con- 
struction as  to  boundaries  on  waters,  finds  its  reason 
in  the  consideration  that,  in  fixing  the  boundary  ^^dth 
reference  to  the  water  or  some  physical  feature  thereof, 
it  may  be  presumed  that  the  parties  in  interest  had  in 
mind  the  probability  of  its  gradual  change  with  the 
passage  of  years,  but  did  not  have  in  mind  the  possibil- 
ity of  a   sudden  and  perceptible  change. 

The  distinction  between  a  gradual  and  a  sudden 
change,  on  which  the  difference  in  the  resulting  rights 
is  based,  has  usually  been  viewed  as  dependent  on 
the  question  whether,  in  the  particular  case,  the  actual 
process  of  change  is  perceptible,  and  it  has  not  been 
regarded  as  sudden,  rather  than  gradual,  merely  be- 
cause, at  distinct  periods  of  time,  one  may  be  able 
to  see  that  a  change  has  occurred.^*  Occasionally  the 
fact  that  the  change  took  place  as  a  result  of  a  flood  or 
storm  appears  to  have  been  regarded  as  making  the 
change  a  sudden  one  for  the  purpose  of  the  distinction.^^ 

The  distinction  above  referred  to,  between  a  grad- 
ual and  a  sudden  change  in  the  location  of  the  water, 
or  of  some  feature  thereof,  appears  to  have  been  to 
some  extent  abandoned  in  connection  with  the  Mis- 
souri and  other  rivers  of  the  middle  west,  the  banks 

Y/.   437;    A.   G.   Winemau   &   Sons  Coan,    64    Md.    439,    54    Am.    Hep. 

V.    Reeves,    245    Fed.    254.    157    C.  775,  2  Atl.  826;  Nix  v.  D'cberson, 

C.    A.    446.  81  Miss.  632,  33  So.  490;   Camden 

24.     King   V.    Yarborough,    3   B.  &  Atlantic  Ry.  Co.  v.   Lippincott, 

&  C.   91;    Jefferis  v.   East  Omaha  45    N.    J.    L.   405:    Halsey   v.    Mc- 

Land  Co.    134  U.  S.  178.  33  L.  Ed.  Cormick.  18  N.  Y.  147;    Saunders 

872;    Nebraska    v.    Iowa,    143    U.  v.   New   York   Central   &   Hudson 

S.   359,    36   L.   Ed.   186;    Philadel-  River    R.    Co.,    144    N.    Y.    75,    26 

phia    Co.    V.    Stimson,    223    U.    S.  L.    R.    A.    378,    43    Am.    St.    Rep. 

605.    56    L.    Ed.    570:    W&.rreu    v.  729.   38   N.   E.   992. 
Chambers,    25    Ark.    120,    4    Am.  25.     St.   Louis   v.    Rutz,    138    U. 

Rep.    24;     Coulthard    v.    Stevens,  S.  226,  34  L.   Ed.  941;    Fowler  v. 

84    lo^va,    241,    35    Am.    St.    Rep.  Wood,    73    Kan.    511,    6    L.    R.    A. 

304,    50    N.    W.    98.3;     Fowler    v.  (N.    S.)     162,    117    Am.    St.    Rep. 

Wood,    73    Kan.    511,    6    L.    R.    A.  534,    85    Pac.    763;    Lynch    v.    Al- 

(N.    S.)    162,    117    Am     Pt.    Rep.  len,    20    N.    C.    190.    32    Am.    Dec. 

534,    85    Pac.    763;    Linthicum    v.  671. 


210-i  Real  Pkopekty.  [§  537 

of  which  are  peculiarly  subject  to  disintegration  by 
the  action  of  the  current.  Such  disintegration  of  the 
banks,  although  ordinarily  culminating  in  a  sudden 
and  perceptible  disappearance  of  the  stratum  of  soil 
above  the  level  of  the  water,  has  been  regarded  as  in- 
volving a  gradual  rather  than  a  sudden  change,  so  that 
the  boundary  of  the  land  shifts  in  accordance  with 
the  change,^*'  This  view  might  perhaps  have  been 
based  on  the  theory  that  the  disintegration  of  the  bank, 
which  finally  culminates  in  the  sudden  disappearance 
of  its  upper  stratum,  is  itself  gradual  rather  than  sud- 
den, but  the  tendency  has  been  to  regard  the  change 
as  gradual  rather  than  sudden  for  the  reason  that  the 
soil,  upon  its  removal  by  the  water,  loses  all  identity, 
and  is  gradually  and  imperceptibly  attached  by  way 
of  accretion  to  the  banks  of  the  river  at  other  points 
thereon.^'^  That  is,  by  these  decisions,  apparently,  the 
continued  preservation  of  the  identity  of  the  land  or 
soil  separated  from  the  bank  is  regarded  as  necessary 
to  render  such  separation  sudden  rather  than  gradual, 
within  the  meaning  of  the  rule  that  the  boundary  re- 
mains unchanged  in  spite  of  a  sudden  change  in  the 
stream. 

The  distinction  between  a  sudden  and  perceptible 
change  on  the  one  hand  and  a  gradual  and  imjiercepti- 
ble  change  on  the  other,  is  frequently  difficult  of  ap- 
plication, and  it  appears  questionable  whether,  as  is 
ordinarily  assumed  in  this  connection,  in  the  case  of  a 
sudden  change  the  process  is  necessarily  more  percepti- 
ble than  in  the  case  of  a  gradual  change.  Perhaps  a 
preferable  line  of  distinction,  in  so  far  as  concerns  land 
on  which  the  water  has  encroached,  is  that  suggested 
in   some   of  the  cases,^^   and   occasionally   strongly  in- 

26.     Nebraska   v.    Iowa,    143    U.  40  Neb.  792,  59  N.  W.  550;  Denny 

S.    359,     36    L.     Ed.    186;     BeUe-  v.    Cotton,   3    Tex.   Civ.   App.    634. 

fontaiue    Imp.     Co.    v.    Niedring-  22   S.  W.  122. 

haus,    181    111.    426,    72    Am.    St.  27.     See  Nebraska  v.  Iowa,  143 

Rep.    269,    55    N.    E.    184;    McCor-  U.  S.  359,  36  L.  Ed.  186. 

mack  V.  Miller,  239  Mo.  463,  144  28.     See    cases   cited   ante,    this 

S.   W.   101;    Bouvier   v.    Strickett,  section,  note  26. 


§  538]  AccBETiON".  2105 

sisted  upon,  to  the  effect  that  the  ownershixD  of  partic- 
ular soil  remains  unchanged  only  when  it  retains  its 
identity,  it  being  said  that  the  distinction  is  that  be- 
tween "a  sudden  disruption  of  a  piece  of  ground  from 
one  man's  land  to  another's  which  may  be  followed 
and  identified,"  and  "that  increment  which  slowly 
or  rapidly  results  from  floods,  but  which  is  utterly 
beyond  the  power  of  identification.  "^^^ 

In  case  a  stream  cuts  out  a  new  channel  through 
the  land,  so  as  to  separate  parts  of  the  land  which  were 
formerly  not  separated,  the  owmership  of  each  part 
remains  the  same  as  before,  unless  at  least  the  separa- 
tion can  be  regarded  as  gradual  rather  than  sudden.^'' 
To  w^hat  extent  the  suddenness  of  the  change  is  control- 
ling in  this  connection  does  not  clearly  appear.  The 
courts  ordinarily  refer  to  the  change  in  the  channel  as 
being  sudden  in  character,  but  there  is  high  authority 
for  considering  the  rule  as  the  same  even  when  the  new 
channel  is  gradually  formed,  the  decisive  consideration 
being  the  lack  of  change  in  the  location  and  character 
of  the  land  as  to  which  the  question  arises." ^ 

§  538.  Accretion  artificially  produced.  That  the 
change   in   the   shore   or  bank  is   the   result,   either   in 

29.  Benson  v.  Morrow,  61  Mo.  W.  258;  Cooley  v.  Golden,  117 
352,  quoted  with  approval  in  Mo.  33,  21  L,  R.  A.  300,  23  S. 
Coulthard  v.  Stevens,  84  Iowa,  W.  100;  Kinkead  v.  Turgeou,  74 
241,  35  Am.  St.  Rep.  304,  50  Neb.  573,  580,  1  L.  R.  A.  (N.'s.) 
N.  W.  983;  Yutterman  v.  Grier,  762,  7  L.  R.  A.  (N.  S.)  316,  121 
112  Ark.  366,  166  S.  W.  749.  See  Am.  St.  Rep.  740,  13  Ann.  Gas. 
also  Nix  V.  Dickerson,  81  Miss.  43,  104  N.  W.  1061,  109  N.  W. 
632,  33  So.  490.  744;     McCormack    v.    Miller,    239 

30.  Nebraska    v.    Iowa,    143    U.  Mo.  463,  144  S.  W.  101. 

S.    359,    36    L.    Ed.    186;    Missouri  31.     Trustees  of  Hopkins  Acad- 

v.   Nebraska,  196   U.   S.  23,   49   L.  emy      v.      Dickinson,      4      Gush. 

Ed.    372;    Belief ontaine    Imp.    Go.  (Mass.)   544,  per  Shaw,  G.  J.     See 

v.   Niedringhaus,    181   111.    426,   72  De    Lassus    v.    Faherty,    164    Mo. 

Am.   St.  Rep.   269,   55  N.   E.    1B4;  361,    58    L.    R.    A.    193,    04    S.    W. 

Bonewitz  v.  Wygant,  75  Ind.   41;  183;    Grady  v.  Royar, —  (Mo.)  — , 

Sweatman    v.    Holbrook,    18    Ky.  181    S.   W.   428. 
L.   Rep.   872,   38   S.   W.   691,   39   S. 


2106 


Real  Property. 


[§  539 


whole  or  in  j^art,  of  human  agency,  is  not  ordinarily 
regarded  as  affecting  the  application  of  the  established 
rules  on  the  subject,^-  subject  to  this  limitation,  how- 
ever, that  the  owner  of  land  abutting  on  the  water 
cannot  himself  extend  its  limits  at  the  expense  of  ad- 
joining proprietors  by  producing  a  condition  which 
causes  an  accretion  to  his  land.^^  The  question  of  tne 
right  of  the  owner  of  land  thus  to  extend  his  land  as 
against  the  state  or  a  state  agency  would  be  detcrrajned 
with  reference,  not  so  much  to  the  law  of  accretion, 
as  to  the  right  of  a  litoral  proprietor,  in  that  jurisdic- 
tion, to  reclaim  land  covered  by  water.'^  That  the 
owner  of  land  on  tide  water  does  not  become  the  owner 
of  "made"  land,  w^hich  results  from  filling  in  in  front 
of  his  land  under  authority  from  the  state  has  been 
occasionally  recognized."^ 

§  539.  Land  appearing  in  place  of  land  disappear- 
ing. It  has  occasionally  been  said  that  if  part  of  one's 
land   disappears   by  erosion   or   submergence,   and   sub- 


32.  Lovingston  v.  St.  Clair 
County,  64  lU.  56,  16  Am.  Rep. 
516;  Bruudage  v.  Knox,  279  111. 
450,  117  N.  E.  123;  Adams  v. 
Roberson,  97  Kan.  198,  155  Pac. 
22;  Adams  v.  Frothingham,  3 
Mass.  352,  3  Am.  Dec.  151;  Tatum 
V.  St.  Louis,  125  Mo.  647,  28  S. 
W.  1002;  Whyte  v.  City  of  St. 
Louis,  153  Mo.  80,  54  So.  478; 
Halsey  v.  McCormick,  18  N. 
Y.  147  (dictum);  Steers  v.  City 
of  Brooklyn,  101  N.  Y.  51,  4  N. 
E.  7;  Gillihan  v.  Cieloha,  74 
Ore.  462,  145  Pac.  1061;  State  v. 
Sturtevant,  76  Wash.  158,  135 
Pac.  1035,  138  Pac.  6o0;  Standly 
V.  Perry,  3  Can.  Sup.  356.  Com- 
pare Dana  v.  Jackson  St.  Wharf 
Co.,  31  Cal.  118,  89  Am.  Dec.  164; 
Lewis  V.  John  L.  Roper  Lumber 
Co.,  113  N.   C.   55,  18   S.  E.  52. 


33.  Atty.  Gen.  of  Southern 
Nigeria  v.  John  Holt  &  Company, 
Ltd,  (1915)  App.  Cas.  599; 
People  ex  rel.  Blakeslee  v. 
Commrs,  135  N.  Y.  447,  32  N.  E. 
139;  Saunders  v.  New  York  Cent. 
&  H.  R.  R.  Co.,  144  N.  Y.  75, 
26  L.  R.  A.  378,  43  Am.  St.  Rep. 
729,  38  N.  E.  992;  Ball  v.  Stack, 
2  Whart.  (Pa.)  508,  30  Am.  Dec. 
278;  Menominee  River  Lumber 
Co.  V.  Seidl,  149  Wis.  316.  135 
N.   W.   854    (as   against   state). 

34.  Ante,  §  305. 

35.  Patton  v.  City  of  Los  An- 
geles, 169  Cal.  521,  147  Pac 
141;  Sage  v.  New  York,  154  N. 
Y.  61,  61  Am.  St.  Rep.  592,  58 
L.  R.  A.  606,  47  N.  E.  1096.  See 
Hoboken  v.  Pennsylvania  R.  R. 
Co.,  124  U.  S.  656,  31  L.  Ed. 
543. 


§  540]  Accretion.  2107 

sequently  land  forms  or  reappears  in  the  same  place, 
the  latter  land  belongs  to  the  person  who  owned  the 
land  which  disappeared.^'^  Such  a  statemeni,  however, 
does  not  appear  to  accord  with  the  authorities  to  the 
etfect  that,  by  the  gradual  encroachment  o?  -^ater  on 
one's  land,  one  loses  the  part  encroached  on,"  and  it 
would  seem  to  be  true  only  when  the  encroachment  is 
sudden  and  perceptible,  or  there  appears  an  intention 
that  the  boundary  shall  remain  in  the  same  location  in 
spite  of  a  gradual  change  in  the  location  cf  the  water, 
or  for  some  other  reason  the  locality  covered  bv  the 
land  which  disappeared  remains  in  the  same  ownership 
after  the  disappearance  as  before. ^^ 

§  540.  Accretions  subject  to  existing  incumbrances. 
When  land  is  dedicated  for  a  public  use  of  such  a  charac- 
ter as  to  render  its  continued  extension  to  the  Avater  de- 
sirable, as  for  instance  for  a  highway  leading  to  the 
water  or  for  a  park,  the  dedication  is  presumed  to  ex- 

36.  Chicago  v.  Ward,  169  111.  Columbia  Law  Rev.  370;  16  Harv. 
392,   38   L.   R.  A.   849,   61   Am.   St.       Law  Rpv.  527. 

Rep.    185,    48    N.    E.   927;    Hughes  In  St.  Louis  v.  Rutz,  138  U.  S. 

V.    Birney's    Heirs,    107   La.    Ann.  226,    34   L.    Ed.    941,    in   which    it 

664,  32  So.  30;    Mulry  v.  Norton,  was    held    that    one    whose    land 

100    N.    Y.    424,    3    N.    E.    586,    53  was      washed     away     re-acquired 

Am.    Rep.    206;    State    v.    Muncie  land    formed    in    the    same    place, 

Pulp    Co.,    119    Tenn.    4,    104    S.  it      was     explicitly     stated     that 

W.    437;    Stockley    v.    Cissna,    119  such    washing    away    was    "rapid 

Fed.   812.  and    perceptible   in    its   progress." 

37.  Ante,  §  534,  note  2.  A   like  statement  might  be  made 

38.  Wallace  v.  Driver,  61  Ark.  in  regard  to  the  disappearance 
429,  31  L.  R.  A.  317,  33  S.  W.  of  the  land  in  Fowler  v.  Wood, 
641;  Holcomb  v.  Blair,  25  Ky.  73  Kan.  511,  6  L.  R.  A.  (N.  P.) 
L.  Rep.  974,  76  S.  W.  843;  Cox  16,  117  Am.  St.  Rep.  534,  85  Pac. 
V.  Arnold,  129  Mo.  337,  50  Am.  763,  and  such  appears  to  be  the 
St.  Rep.  450,  31  S.  W.  592;  Vog-  meaning  of  the  statement  in 
elsmeier  v.  Prendergast,  137  Mo.  Lord  Hale's  De  Jure  Maris,  cap. 
271,  39  S.  W.  83;  Frank  v.  God-  4.  See  Hall,  Foreshore  (2nd 
din,  193  Mo.  390,  112  Am.  St  Ed.)  at  p.  130,  as  quoted  In 
Rep.  493,  91  S.  W.  1057;  In  re  Ocean  City  Ass'n  v.  Shriver,  64 
City  of  New  York,  206  N.  Y.  319,  N.  J.  Law  550,  51  L.  R.  A.  425, 
99    N.    E.    850;    editorial   notes,    7  4G  Atl.  690. 


2108 


Eeal  Propeety. 


[§  540 


tend  as  far  as  the  water,  although  this,  by  reason  of  ac- 
cretions to  the  land,  becomes  more  distant  after  the 
dedication  is  made.^^  "The  presmnption  is  that  the  in- 
tent was  that  the  way  would  reach  the  water  so  as  to  en- 
able the  public  to  enjoy  the  navigation  of  the  stream.  "*° 
Likewise,  it  has  been  decided  that  when  a  highway  was, 
by  statutory  proceedings,  laid  out  extending  to  the  water, 
or  to  some  particular  feature  of  the  water,  it  continued 
to  extend  thereto  in  spite  of  any  change  that  might  occur 
in  the  water.^^  The  grant  of  a  private  right  of  way 
extending  to  the  water  would  no  doubt  ordinarily  be 
construed  in  the  same  way  as  is  a  dedication  for  high- 
way purposes.^^  And  a  restrictive  covenant  in  regard 
to  shore  land  has  been  regarded  as  applying  to  land 
added  thereto  by  accretion.^^ 

A  lease  for  years  of  land,  bounding  on  water,  is, 
like  a  conveyance  in  fee  simple,  presumed  to  intend 
the  water  to  remain  the  boundary,  in  spite  of  any 
gradual  change  in  the  location  thereof ,^^^  And  this  is 
likewise  the  case  when  a  mortgage  is  made  of  such 
land.44 


39.  Doe  V.  Jones,  11  Ala.  63 
Town  of  Freedom  v.  Norris,  128 
Ind.  377,  27  N.  E.  869;  Cook  v. 
Burlington,  30  Iowa,  94,  6  Am. 
Rep.  649;  Godfrey  v.  Alton,  12 
111.  29,  52  Am.  Dec.  476;  Mayor 
of  Jersey  City  v.  Morris  Canal 
&  Banking  Co.,  12  N.  J.  Eq.  547; 
Hathaway  v.  City  of  Milwaukee, 
132  Wis.  249,  9  L.  R.  A.  (N,  S.) 
778,  122  Am.  St.  Rep.  975,  111 
N.  W.  570,  112  N.  W.  455.  That 
a  contrary  intention  may  be  in- 
ferred from  the  circumstances, 
see  Mark  v.  West  Troy,  151  N.  Y. 
453,  45  N.  E.  842. 

40.  State  v.  Yates,  104  Me. 
360,  22  L.  R.  A.  (N.  S.)  592, 
71  Atl.  1018,  per  Savage,  J. 

41.  Newark  Lime  &  Cement 
Mfg.    Co.    V.    Newark,    15    N.    J. 


Eq.  64;  Hoboken  Land  &  Imp. 
Co.  V.  Mayor,  etc.,  of  Hoboken, 
36  N.  J.  L.  540;  State  \.  Yates, 
104  Me.  360,  22  L.  R.  A.  (N.  S.) 
592,  71  Atl.  1018;  Dana  v.  Crad- 
dock,   (36   N.   H.   593,   32  Atl.   757. 

42.  See  Lockwood  v.  New  York 
&   N.   H.   R.   Co.,   37   Conn.   387. 

43.  Bridgewater  v.  Ocean  City 
Ass'n,  85  N.  J.  Eq.  379,  96  Atl. 
905. 

43a.  Cobb  v.  Lavalle,  89  lU. 
331,  31  Am.  Rep.  91;  Rutz  v. 
Kehr,— (111.)— ,  25  N.  E.  957;  Wil- 
liams   V.    Baker,    41    Md.    523. 

44.  Cobb  V.  Lavalle,  89  111. 
331,  31  Am.  Rep.  91;  Cruik- 
shanks  v.  Wilmer,  93  Ky.  19,  18 
S.  W.  1018;  Allen  v.  St.  Louis, 
I.  M.  &  S.  R.  Co.,  137  Mo.  205, 
38   S.  W.  957. 


§  541]  Accretion.  2109 

A  lien  or  incumbrance  on  the  land,  which  is  created 
by  operation  of  law,  such  as  a  right  of  dower,*^  binds 
subsequent  accretions  to  the  land,  for  the  reason,  it 
seems,  that  it  is  necessarily  co-extensive  with  the 
ownership  of  the  land,  and  the  latter  is  presumed  to 
extend  to  the  water  without  reference  to  any  gradual 
change  which  may  take  place  in  the  location  of  the 
water.^^ 

It  has  been  decided  that  if,  after  the  statute  of 
limitations  has  partially  run  in  favor  of  one  in  adverse 
possession  of  land  bounding  on  the  water,  land  is  ad- 
ded thereto  by  accretion,  he  acquires,  upon  the  subse- 
quent running  of  the  balance  of  the  limitation  period, 
the  title  to  the  newly  formed  land  as  well  as  to  that 
originally  existing.  This  is  for  the  reason,  it  is  said, 
that  "the  indicia  of  the  actual  possession  of  him  who 
held  on  the  main  land  are  extended  over  the  forming 
accretion  and  bring  it  within  his  actual  posses9ion."'*^ 
Presumably  a  like  view  w^ould  be  taken  in  the  case  of 
adverse  user  of  land  by  the  public  or  an  individual  for 
passage  to  the  water,  that  is,  the  user  w^ould  be  re- 
garded as  in  theory  extending  over  the  accretion  then 
forming  or  liable  to  form  in  the  future,  for  the  purpose 
of  giving  a  right  by  prescription.*'^ 

§  541.  Vested  right  in  future  accretions.  It  has 
been  occasionally  stated  that  a  riparian  owner  has  no 
vested    right   as   to    future    accretions.^^      This    is    pre- 

45.  Lombard  v.  Kinzie,  7;i  111.  48.  Western  Pac.  R.  Co  v. 
446.  Southern   Pac.   Co.,   151    Fed.   37f>, 

46.  Benne  v.  Miller,  149  Mo.  80  C.  C.  A.  606,  Cohen  v.  United 
228,  50  S.  W.  824,  quoted  and  States,  162  Fed.  364;  Eisenbach 
applied  in  Bellefontaine  Improve-  v.  Hatfield,  2  Wash.  250,  26  Pac. 
ment  Co.  v.  Niedrlnghaus,  181  539.  The  cases  of  Taylor  v. 
111.  426,  72  Am.  St.  Rep  2oj,  Underhill,  40  Cal.  471;  Chicago, 
55N.  E.  184;  Chicago  &  N.  W.  Ry.  R.  I.  &  P.  Ry.  Co.  v.  Porter,  72 
Co.  V.  Groh,  85  Wis.  641,  55  N.  Iowa,  426,  34  N.  W.  286,  occa- 
W.  714.  sionally  cited  to  this  effect,  do  not 

47.  Compare  note  in  22  Harv.  support  the  statement. 
Law  Rev.   at  p.   610. 

2  R.  P.— 58 


2110  Real  Pkopekty.  [§  542 

sumably  correct  as  regards  his  right  to  have  conditions 
remain  such  that  accretions  may  form  in  the  f^^ture  in 
front  of  his  land/^  but  it  appears  questionable  as  re- 
gards his  right  to  such  accretions  as  do  form.^"  For  in- 
stance, if  the  state  grants  land  bounded  by  the  shore, 
and  it  is  clearly  the  intention  that  the  grant  sliall  ex- 
tend to  the  shore  regardless  of  any  change  that  may 
take  place  in  the  location  thereof,  the  state  cannot,  it  is 
conceived,  make  such  intention  nugatory  by  enacting 
that  no  accretion  shall  accrue  to  the  benefit  of  any 
litoral  owner.  And  in  the  case  of  land  bounded  by  the 
edge  of  a  river,  it  would  hardly  be  permissible  for  the 
legislature  to  deprive  the  grantee  of  such  land  of  the 
right  to  future  accretions,  and  to  give  them  to  his 
grantor,  by  establishing  a  conclusive  presumption  that 
in  such  a  case  the  boundary  line  is  intended  to  remain 
in  the  same  location  in  spite  of  any  change  in  the  edge 
of  the  stream  as  a  result  of  accretions  to  the  land. 

§  542.  Accretions  to  island.  In  the  case  of  an 
island,  the  same  rule  applies  as  in  the  case  of  land 
bounded  by  water  on  one  side  only,  that  is,  the  bound- 
aries are  presumed  to  vary  with  any  gradual  change  in 
the  line  between  the  land  and  the  water  or,  e.s  it  is 
otherwise  expressed,  the  owner  of  an  island  is  entitled 
to  land  added  thereto  by  accretion  to  the  same  extent 
as  the  owner  of  land  on  the  bank  or  shore  of  the  main- 

49.     In     Freeland     v.     Pennsyl-  with   the   utility  of  land   actually 

vania  R.   Co.,   197   Pa.   529,   58   L.  owned    by    him. 

R.   A.   206,   80   Am.    St.    Rep.    850.  50.  There   are    dicta    to    the    ef- 

47   Atl.    745,   it   was   decided   that  feet  that  one  has  a  vested  right 

a    riparian    owner    could    recover  to  future  accretions,  in  County  of 

damages    for    the    loss    of    futufe  St.   Clair  v.  Lovingston,  23  Wa'l. 

alluvium   by    reason    of   the   erec-  (U.    S.)    46,    23    L.   Ed.    59;    Hohl 

tion    of    a    ra'ilway    embankment  v.    Iowa    Cent.    R.    Co.,    162    Iowa, 

higher   up   the  stream,  but   there  66,    143    N.   W.    850;    Municipaiity 

the   alluvium   was   accustomed    to  No.    2    v.    Orleans    Cotton    Press, 

form,    not    horizontally    adjacent  18    La.    122,    36    Am.    Dec.    624; 

to    plaintiff's    land,    but    I'pon    it.  Meyers    v.    Mathis,    42    La.    Ann. 

That  is,  tnere  was  an  inte-ierence  471,     21     Am.     St.     Rep.     385,     7 


§  542]  Accretion.  2111 

land.^^  In  case  accretions  to  the  island  and  to  the 
mainland  eventually  meet,  the  owner  of  each,  it  is  said, 
owns  the  accretions  to  the  line  of  contact,''"^  or,  as  we 
would  prefer  to  express  it,  the  boundary  of  an  island, 
as  that  of  the  mainland,  changes  as  its  edge  or  shore 
line  changes,  and  when  there  is  no  longer  any  island, 
owing  to  the  growth  of  the  accretions,  he  to  whom  the 
island  belonged  owns  to  where  its  edge  or  shore  line 
was  last  visible. 

The  question  may  arise,  in  this  connection,  whether 
a  formation  of  land  which  appears  in  the  stream  is  of 
sufficient  size,  importance  and  permanence,  to  be  re- 
garded as  an  island.  It  has  been  said  in  this  connection 
that  not  everything  which  rises  above  highwater  mark 
can  be  called  an  island,  that  there  may  be  reefs  and 
rocks  and  other  accumulations  that  are  not  such  in  any 
essential  sense,  and  it  may  be  a  question  of  fact  whether 
sand  heaps  and  bars,  separated  from  tlie  mainland  only 
by  narrow  channels  or  sloughs,  are  islands. ^^ 

So.   605.     See  Linthicum  v.  Coan,  590,    184    S.    W.    891;     Naylor    v. 

64  Ind.  439,  54  Am.  Rep.  775,  2  Cox,  114  Mo.  232,  21  S.  W.  589. 
Atl.    826;     Webber    v.    Axtell,    94  52.     BeUefontaine    Imp.    Co.    v. 

Minn.    375,    6    L.    R.    A.    (N.    S.)  Niedringhaus,     181     111.     426,     Tj 

194,    102   N.   W.   915.     That   after  Am.   St.   Rep.   269,   55  N.   E.   184; 

the    federal    government    granted  Fowler  v.  Wood,  73  Kan.  511,  85 

land     as     bordering     on     a     lake,  Pac.    763,    117    Am.    St.    Rep.    534, 

it  could   not   deprive  the   grantee  6  L.  R  A.    (N.   S.)    162;    Bigelow 

of     land      formed     by     accretion  v.  Hoover,   85   Iowa,   161,   19   Am. 

is   decided    in   Knudsen  v.   Oman-  St.     Rep.     296,     52     N.     W.     124; 

son,    10   Utah,    124,    37    Pac.    250.  Cooley    v.    Golden,    117    Mo.    33, 

51.     St.    Louis   v.   Rutz,    138   U.  21    L.    R.    A.    300,    33    S.   W.    100; 

S.    226,    34   L.    Ed.    941;    Fillmore  Hahn  v.  Dawson,  134  Mo.  581,  36 

v.   Jennings,  78  Cal.   634,  21   Pac.  S.  W.  233;    Moore  v.  Farmer.  156 

536;    Glassell  v.  Hansen,  135  Cal.  Mo.    33,    79    Am.    St.    Rep.    504, 

547,  67  Pac.  964;    Griffin  v.  John-  56     S.    W.    493.      See    People    v. 

son,    161   in.    377,    44    N.    E.    206;  Warner,     116     Mich.     228,    74     N. 

Holman  v.  Hodges,  112  Iowa,  714,  W.   705. 

58  L.  R.  A.  673,  84  Am.  St.  Rep.  53.     Peters,  C.  J.,  in  Babson  v. 

367,  84  N.  W.  950;   Stark  v.  Meri-  Tainter,   79   Me.   368.   10  Atl.   368. 

wether,    98    Kan.    10,    Ann.    Cas.  It  has  been  decided  by  the  same 

1918E,    993,    157    Pac.    438;    Perks  court  that  an  elevation  of  muscle 

&  Higgins  V.  McCracken,  169  Ky.  bed,   occasionally   covered   by   the 


2112 


Real  Property, 


[§  543 


§  543.  Apportionment  of  accretions.  In  making 
the  division  between  adjoining  litoral  or  riparian  own- 
ers of  the  land  formed  by  accretion,  the  courts  have 
usually  adopted  the  rule  of  the  civil  law,  by  wbich  the 
new  water  front  is  divided  between  them  in  the  same 
proportions  as  the  old  water  front,  the  side  boundary 
lines  being-  run  in  a  straight  course  from  the  points  of 
division  on  the  old  frontage  to  the  points  of  division  on 
the  new.^^  It  is  generally  conceded,  however,  even  by 
the  decisions  which  adopt  this  rule  of  division  in  the 
ordinary  case,  that  it  is  subject  to  modification  under 
particular  circumstances,^^  and  that  especially  in  fixing 
the  extent  of  the  frontage  the  ''general  available  line" 
thereof  should  be  taken  rather  than  the  actual  lino  as 
extended  by  deep  indentations  or  sharp  projections. 
In  at  least  one  case  the  lines  were  extended  from  the 
points  of  division  on  the  old  water  front  to  pro]»ortion- 


water,   is   not  an   island.     Thorn- 
ton V.  Foss,  26  Me.  402. 

54.  Johnston  v.  Jones,  1  Black. 
(U.  S.)  210,  17  L.  Ed.  117; 
Malone  v.  Mobbs,  102  Ark.  542, 
Ann.  Cas.  1914A,  479,  145  S.  W. 
193,  146  S.  W.  143;  Kehr  v. 
Snyder,  114  111.  313,  55  Am.  Rep. 
866,  2  N.  E.  68;  Hammond  v. 
Shepard,  186  111.  235,  78  Am.  St. 
Rep.  274,  57  N.  E.  867;  Berry 
V.  Hoogendoorn,  133  Iowa,  437, 
108  N.  W.  333;  Newell  v.  Leath- 
ers, 50  La.  Ann.  162,  69  Am.  St. 
Rep.  395,  23  So.  243;  Deerfield 
V.  Arms,  17  Pick.  (Mass.)  41, 
28  Am.  Dec.  276;  Blodgett  &  D. 
Lumber  Co.  v.  Peters,  87  Mich. 
498,  49  N.  W.  917,  24  Am.  St 
Rep.  175;  Smith  v.  Leavenworth, 
101  Miss.  238,  57  So.  803;  De 
Lassus  V.  Faherty,  164  Mo.  361, 
58  L.  R.  A.  193,  64  S.  W.  183; 
Batchelder  v.  Kenniston,  51  N. 
H.   496,  12  Am.  Rep.  143;    O'Don- 


nell  V.  Kelsey,  10  N.  Y.  415; 
Northern  Pine  Land  Co.  v.  Bige- 
low,  84  Wis.  157,  21  L.  R.  A.  776, 
54  N.  W.  496;  Hathaway  v.  City 
of  Milwaukee,  132  Wis.  249,  9  L. 
R.  A.  (N.  S.)  778,  122  Am.  St. 
Rep.    975,    112    N.   W.    455. 

55.  Malone  v.  Mobbs,  102  Ark. 
542,  Ann.  Cas.  1914A,  479,  145  S. 
W.  193,  146  S.  W.  143;  Kehr  v. 
Snyder,  114  111.  313,  55  Am.  Rep. 
866,  2  N.  E.  68;  City  of  Peoria 
V.  Central  Nat.  Bank,  224  111.  43, 
12  L.  R.  A.  (N.  S.)  687,  79  N. 
E.  296;  Stark  v.  Meriwether, 
98  Kan.  10,  Ann.  Cas.  1913E. 
993,  157  Pac.  438;  Blodgett  & 
Davis  Lumber  Co.  v.  Peters,  87 
Mich.  498,  24  Am.  St.  Rep.  175,  49 
N.  W.  917;  Smith  v.  Leavenworth. 
101  Miss.  238,  57  So.  803;  Batch- 
elder  v.  Keniston,  51  N.  H.  496, 
12  Am.  Rep.  143;  Thornton  v. 
Grant,  10  R.  I.  477,  14  Am.  Rep. 
701;     Hubbard     v.     Man  well,     60 


§  513]  AccEETioi^.  2113 

ate  i^oints  of  division,  not  on  the  new  front,  but  on  the 
thread  of  the  stream.^*' 

Occasionally  the  new  land  formed  in  a  stream  has 
been  divided  by  drawing  straight  lines  from  the 
division  points  on  the  old  front  at  right  angles  to  the 
general  course  of  the  stream,°^  and  sometimes  the 
division  has  been  made  by  continuing  the  side  lines  of 
the  properties  in  exactly  the  same  direction  through  the 
newly  formed  land.^^  This  latter  method  of  api^ortion- 
ment  would  seem  best  to  accord  with  the  theory  of  ac- 
cretion, above  advocated,^^  that  one  acquires  title  tc  the 
newly  formed  land  merely  because  the  muniment  of  title 
is  construed  as  making  the  water  the  boundary  regard- 
less of  change  in  the  location  of  the  water.  P^or  in- 
stance, if  a  conveyance  describes  the  side  boundary  as 
running  in  a  certain  course  to  the  water,  it  should 
run  in  that  course  regardless  of  any  change  in  t]ie  loca- 
tion of  the  water.  But  the  courts  have  not  looked  at 
the  subject  from  this  point  of  view,  and  have  occasion- 
ally repudiated  in  express  terms  the  method  of  appor- 
tionment referred  to.^'^  They  have  a]i])arently  had  in 
mind  chiefly  the  securing  a  fair  division  of  the  new 
frontage,  a  consideration  which,  it  would  seem,  is  of 
much  greater  importance  in  the  case  of  navigable 
waters  than  in  the  ca§e  of  those  not  navigable. 

This  matter  of  the  apportionment  of  accretions 
has  been  occasionally  discussed  with  referenr>^  to  the 
analogous  case  of  the  apportionment  of  the  ''flats"  or 
the  shore  among  the  owners  of  the  uplands,  in  cases  in 
which  the  state  has  relinquished  the  ownership  of  the 

Vt.    235,    G    Am.    St.    Rep.    110,    14  App.    479,    2    Pac.    86;    Gorton    v. 

Atl.    693.  Rice,   153  Mo.  676,  55  S.  W.  241; 

56.  Kehr  v.  Snyder,  114  111.  Hubbard  v.  Manwell,  60  Vt.  235. 
313,  55  Am.  Rep.  886,  2  N.  E.  68.  6   Am.   St.   Rep.   110,   14   Atl.   693, 

57.  Gorton    v.    Rice,     153    Mo.  59.     Ante,  §  535. 

076,  55  S.  W.  241;   Miller  v.  Hep-  60.     Kehr    v.    Snyder.    114     III. 

burn,    8    Bush    (Ky.)    326.  313,    55    Am.    Rep.    866,    2    N.    E. 

58.  Stockley  v.  Cissna,  119  68;  Berry  v.  Hoogendoorn,  133 
Fed.  812,  56  C.  C.  A.  324  (sem-  Iowa,  437.  108  N.  W.  923;  Cran- 
ble);    McCamon  v.   Stagg,  2   Kan.  dall    v.    Allen,    118    Mo.    403,    22 


2114  'Real.  Peoprrty.  [§  543 

flats,*^^  and  like  considerations  have  been  recognized 
as  applicable  in  the  two  cases,  as  they  have,  in 
determining  the  rights  of  riparian  or  litoral  owners, 
as  against  each  other,  to  construct  improvenients  in 
front  of  their  laud.^-  In  all  these  cases  the  difficulty 
of  arriving  at  a  just  mode  of  apportionment  is  partic- 
ularly emphasized  when  the  lands  belonging  to  the 
various  proprietors  are  located  on  a  bay  or  cove,  and 
varying  rules  have  been  suggested  as  to  the  most  desir- 
able method  of  apportionment  in  such  a  case,  the  under- 
lying idea  of  all  of  which,  however,  is  to  give  to  eacli 
proprietor  the  same  proportionate  access  to  the  water 
as  he  previously  had.®^ 

When  a  lake,  the  bed  of  which  originally  belonged 
to  the  state,  becomes  dry,  the  question  as  to  the  owner- 
ship of  the  bed  is  a  difficult  one.  It  appears  to  de- 
pend in  the  first  place  upon  the  direction  or  directions 
in  which  the  recession  of  the  water  occurred^  each 
owner  of  abutting  land  being  entitled  by  ''accretion" 
to  land  left  dry  as  the  water  receded  from  his  shore. 
Frequently,  however,  it  would  be  impossible  to  ascertain 
the  direction  of  the  recession  of  the  water,  and  in  such 
a  case  the  court  would  presumably  have  to  proceed 
on  the  theory  that  the  whole  bed  of  the  lake  became  dry 
at  one  time,  and  fix  the  lines  of  division,  as  between 
individual  proprietors,  as  if  the  ownership  had  not 
originally  been  in  the  state.^^*  In  case  it  appears 
that,  in  the  course  of  the  gradual  disappearance  of 
the  water,  islands  formed  or  appeared,  these  would  be- 

L.    R.    A.     591,    24     S.    W.     172;  62.     See  Blodgett  &  Davis  Lum- 

Manchester  v.   Point   Street   Iron  ber   Co.   v.   Peters,   87   Mich.   498, 

Works,    13   R.   I.   355.  24   Am.    St.    Rep.    175,    49    N.    W. 

61.     See  Comm.  v.  City  of  Rox-  917;    Thornton    v.    Grant,    10    R. 

bury,  9  Gray    (Mass.)    451;    Won-  I.    477,    14    Am.    Rep.    701, 

son  V.  Wonson,  14  Allen    (Mass.)  63.     See     editorial     notes,     122 

85;    Thornton  v.   Grant,    10   R.   I.  Am.    St.    Rep.    986.    21    L.    R.    A. 

477,    14   Am.    Rep.    701;    Lowndes  776,  25  L  R.  A.   (N.  S.)   257. 

v.   Wickes,    69    Conn.    15,    36    Atl.  63a.     Ante,    §    445. 
1072. 


§  544]  AccBETiox.  2115 

long  to  the  state,^^^  and  so  the  state  would  be  entitled 
to  any  extensions  of  such  islands  caused  by  the  further 
recession  of  the  water  away  therefrom.®^*^ 

§  544.  Formatioii  of  new  islands.  An  island,  when 
formed  in  a  stream  or  body  of  water  by  the  deposit  of 
alluvial  matter  therein,  belongs  to  the  owner  of  the 
land  beneath  the  water,  on  which  the  island  is  formed, 
whether  such  owner  be  the  stat€  or  an  individual.^^^ 
So,  if  the  island  is  on  both  sides  of  a  line  dividing  the 
lands  of  different  owners,  the  island  belongs  to  both 
owners,^*  This  is  evidently  not  so  much  by  force  of  a 
doctrine  of  accretion  as  by  reason  of  the  fact  that  the 
island  is  within  the  limits  of  the  ownership  of  the 
particular  proprietor.  A  new  formation  on  bis  land 
belongs  to  him  just  as  much  as  the  old  formation. 

If  an  island  which  first  forms  opposite  the  land  of 
one  riparian  proprietor  gradually  extends  by  accretion 
opposite  the  land  of  another  proprietor,  the  island  be- 
longs, not  exclusively  to  the  fonner,  but  in  part  to  the 
former  and  in  part  to  the  latter.^-^ 

An  island  which  is  formed,  not  by  the  deposit  or 
increase  of  alluvial  matter,  but  by  a  change  in  the 
course  of  a  river,  operating  to  cut  off  from  the  mainland 
a  ix)rtion  of  land  previously  constituting  a  pa^T  of  the 

63b.  Post.   §   544.  53    Am.    Rep.    206.    212,    3    X.    E. 

63c.     See  Hammond  v.  Shepard.  581;   McCullough  v.  Wall.  4  Rich. 

186  111.  235,  78  Am.  St.  Rep.  274,  (S.    C.)     6S.    53    Am.    Dec.    715; 

57  N.  E.   876.  Menominee  River  Lumber   Co.  v. 

63d.     St.  Louis  t.  Rutz,  138  U.  Seidl,    149    Wis.    316,    136    N     W. 

S.    226,    34    L.    Ed.    941;    Glassell  854. 

V.   Hansen,   135   Cal.   547,  67   Pac  64.     Trustees  of  Hopkins   k^&d- 

964;     Middleton    v.    Pritxihard,    4  emy  v.  Dickinson.  9  Cush    (Mass.) 

111.    510,    38    Am.    Dec.    112;    East  548:    Wiggenhorn    r.    Kountz,    23 

Omaha   Land   Co.   v.   Hansen.   117  Xeb.  690.  8  Am.   St.  Rep.  150,  37 

Iowa.   96,   90   N.    W.    705;    Wilson  X.  W.  603;    State  v.  Muncie  Pulp 

V.  Watson.  144  Ky.  352,  Ann.  Cas.  Co.,    119    Tenn.     47,    104     S.    W 

1913 A  774,  138  S.  W.  283;   Cox  v.  43";    3  Kent's  Comm.  428. 

Arnold.   129   Mo.   337.  50  Am.    St.  65.     Archer  t.  Southern  Ry.  Co., 

Rep.    450,    31    S.    W.    592;    Muliy  114  Miss.  403,  75  So.  251. 
V.    Norton.    100    X.    Y.    424.    4-:d. 


2116  Real  Property.  [§  544 

mainland,  continues  in  the  same  ownership  as  before.^® 
provided  at  least  the  change  in  the  course  of  the  stream 
can  be  regarded  as  sudden.^^ 

66.     Trustees  of  Hopkins  Acad-  64    S.    W.    183;    Grady    v.    Royar, 

emy      v.      Dickinson,      9      Cush.  (Mo)    181    S.    W.    428;    Bonewitz 

(Mass.)  544;  De  Lassus  v.  Faher-  v.    Wygant,    75    Ind,    41. 

ty,  164  Mo.  361,  58  L.  R.  A.  193,  67      Se&  ante,  §  537. 


CHAPTER  XXVI. 

ESTOPPEL. 

§  545.     Assertion  of  after  acquired  title. 

(a)  General  considerations. 

(b)  Character  of  conveyance. 

(c)  Necessity  and   character  of  covenants. 

(d)  Cases  to  which  doctrine  inapplicable. 

(e)  Persons  bound  by  the  estoppel. 

546.  Estoppel  by  representation. 

547.  Improvements  by  oral   grantee. 

§  545.  Assertion  of  after  acquired  title —  (a)  Gen- 
eral considerations.  At  common  law,  a  transfer  of 
land  by  feoffment,  fine,  or  common  recovery  operated 
to  transfer  any  estate  or  interest  which  might  be  sub- 
sequently acquired  by  the  transferor,  in  case  he  did  not, 
at  the  time  of  making  the  assurance,  have  such  an 
estate  as  he  purported  to  transfer.^  A  lease  by  in- 
denture had  a  partially  similar  effect,  in  thai",  if  the 
lessor  did  not  have  any  interest  in  the  land  at  the  time 
of  making  the  lease,  an  interest  subsequently  acquired 
by  him  became  subject  thereto,  though  this  was  not  al- 
ways the  case  if  the  lessor  had  some  interest  at  the  date 
of  the  lease.^  Conveyances  other  than  those  named 
had  no  such  effect  of  passing  an  after  acquired  interest 
or  title  at  common  law,  nor  have  they  in  England  at 
the  present  day.' 

1.  Bigelow,  Estoppel  (6th  Ed.)  Doe  d.  Strode  v.  Seaton,  2 
419,  450-456;  Rawle,  Covenants  Cromp.,  M.  &  R.  728;  Trevivan 
for   Title    (5th   Ed.)    §    243;    Doe      v.  Lawrence,  1  Salk.  276. 

d.   Christmas  v.    Oliver,   10   Barn.  3.     Williams,    Real    Prop.    (21st 

&  C.   181;    Sturgeon  v.  Wingfield,  Ed.)    507;    Rawle,    Covenants    for 

15  Mees.  &  W.  224.  Title    (5th   Ed.)    §§   244,  246,  262: 

2.  Co.  Litt.  47b;  Williams,  Bigelow,  Estoppel,  459  et  seq;  2 
Real  Prop.  (21st  Ed.)  507;  Tiff-  Smith,  Lead.  Cas.  Amer.  notes 
any,    Landlord    &    Tenant,    §    76;  839;    Right   v.   Bucknell,   2   Barn. 

(2117) 


2118  Eeal  Property.  [§  545 

It  has  been  recognized  in  England,*  as  it  has  in 
numerous  jurisdictions  in  this  country,^  that  if  a  con- 
veyance purports  to  transfer  a  certain  estate,  whether 
this  appears  from  recitals,  covenants,  or  any  other  part 
of  the  instrument,  the  grantor  is  estopped  thereafter 
to  assert  that,  by  reason  of  lack  of  title  in  him  at  the 
time,  such  an  estate  did  not  pass  by  the  conveyance, 
to  assert,  in  other  words,  that  he  acquired  title  after 
and  not  before  the  conveyance.  This  latter  view  is 
ordinarily  referred  to  as  involving  merely  an  applica- 
tion of  the  common  law  doctrine  of  estoppel  by  deed, 
precluding  a  party  to  a  deed  from  contradicting  or 
disproving  any  declaration  or  averment  therein.  Fre- 
quently, however,  it  might  as  well  be  regarded  as  in- 
volving an  application  of  the  modern  doctrine  of  es- 
toppel by  misrepresentation,  the  grantor,  that  is,  hav- 
ing induced  a  change  of  position  on  the  part  of  the 
grantee,  the  pajnnent  of  purchase  money,  by  his  repre- 
sentation that  he  has  an  estate  of  a  certain  character, 

&    Adol.     278;     General    Finance,  157     N.     W.     734;      Fitzhugh     v. 

Mortgage  &  Discount  Co.  v.  Liber-  Tyler,     9     B.     Mon.     (Ky.)     561;* 

ator     Permanent      Benefit      Bldg.  Cornelius  v.  Kinnard,  157  Ky.  50, 

Soc.   10   Ch.   Div.   15.  162    S.    W.    524    (semble) ;    Wells 

4.  See  Right  v.  Bucknell,  2  B.  v.  Blackman,  121  La.  324,  46  So. 
&  Ad.  278;  Heath  v.  Crealock,  437  (semble);  Pendill  v.  Mar- 
L.  R.  10  Ch.  30;  Bensley  v.  quette  County  Agricultural  Soc, 
Burden,  2  Sim.  &  S.  524,  8  L.  95  Mich.  491,  55  N.  W.  384;  Mc- 
J.  Ch.  85;  General  Finance,  etc.,  Innes  v.  Pickett,  65  Miss.  354, 
Co.  V.  Liberator,  etc.,  Society,  10  3  So.  660;  Hagensick  v  Castor, 
Ch.  Div.  15;  Poulton  v.  Moore  53  Neb.  495,  73  N.  W.  932;  Han- 
(1915),  1  K.   B.   400.  non  v.   Christopher,  34  N.  J.   Eq. 

5.  Van  Rennsselaer  v.  Kear-  465;  Northrup  v.  Ackerman,  84 
ney,  11  How.  (U.  S.)  297,  13  L.  N.  J.  Eq.  117,  92  Atl.  802,  309; 
Ed.  703;  Diaz  v.  Sanchez,  226  Hallyburton  v.  Slagle,  132  N.  C. 
U.  S.  234,  57  L.  Ed.  201  (sem-  947,  44  S.  E.  655;  Keady  v. 
ble);  Molina  v.  Ramirez,  15  Martin,  69  Ore.  299,  Ann.  Cas. 
Ariz.  249,  138  Pac.  17;  Clark  v.  1916A,  796,  137  Pac.  856;  Root 
Baker,  14  Cal.  629,  76  Am.  Dec.  v.  Crock,  7  Pa.  378;  Lindsay  v. 
449;  Doe  dem  Potts  v.  Dowdali,  Freeman,  83  Tex.  259,  263,  18  S. 
3  Houst.  (Del.)  369;  Habig  v.  w.  727;  Breen  v.  Morehead,  104 
Dodge,  127  Ind.  31,  25  N.  E.  182;  Tex.  254,  126  S.  W.  650; 
Bring  v.    Swarm,    176    Iowa,   153,  Reynolds   v.   Cook,   83  Va.   817,   3 


§  545]  Estoppel.  2119 

is  thereafter  estopped  to  deny  that  he  had  snch  an 
estate  at  the  time  of  the  payment.  Whichever  theory 
be  adopted,  there  is  no  necessity  of  regarding  the  after 
acquired  title  as  actually  passing  to  the  grantee.  In 
this  country,  however,  there  are  decisions  and  numer- 
ous dicta  to  the  effect,  not  only  that  the  grantor  in  a 
conveyance  is  estopped  to  deny  that  it  passed  tlie  es- 
tate which  it  purported  to  pass,  but  also  that  the 
conveyance  actually  passes,  by  way  of  estoppel,  any 
estate  or  title  which  the  grantor  may  thereafter  acquire 
in  the  land,  if  this  is  within  its  apparent  scope,  and 
especially  if  it  contains  certain  covenants  of  title.*^ 
There  are,  moreover,  in  a  number  of  states,  statutory 
provisions  to  this  etfeetJ 

For  most  purposes,  the  question  whether  there  is 
merely  an  estoppel  on  the  grantor  to  assert  the  after- 
acquired  title,  or  whether  such  title  actually  passes 
under  the  conveyance,  is  immaterial.  The  distinction 
between  the  two  views  is,  however,  important  in  that, 
as  between  the  grantor  and  grantee,  the  effect  of  the 
application  of  the  rule,  without  exception,  that  a  con- 
veyance containing  a  covenant  of  title  operates  to  pass 
an  after-acquired  estate,  would  be  that  the  grantee 
would  be  compelled  to  take  such  an  estate,  and  would 
not  have  the  option  of  refusing  so  to  do,  and  of  recover- 
ing full  damages  on  the  covenant.  Eecognizing  the 
injustice  of  such  a  result,  it  has  occasionally  been  held 
that  the  grantee  has  such  an  option,  and  is  not  com- 
pelled to  accept  the  after-acquired  estate  in  partial  or 
total  satisfaction  of  the  covenant.® 

S.    E.    710,    5    Am.    St.    Rep.    317;  1454;    Rawle,  Covenants  for  Title 

Summerfield  v.  White,  54  W.  Va.  (5th   Ed.)    §    249. 

311,  46  S.  E.  154.  8.     Burton    v.    Reeds,     20    Ind. 

6,  Rawle,  Covenants  for  Title  87;  Blanchard  v.  Ellis.  1  Gray 
(5th  Ed.)  §  248,  and  the  numer-  (Mass.)  193;  Resser  v.  Carney, 
ous  oases  there  cited;  Biselow  52  Minn.  397,  54  N.  W.  89; 
Estoppel,  465;  2  Smith,  Lead.  Tucker  v.  Clark.  2  Sandf.  Ch. 
Cas.  Amer.  notes  838;  11  Am.  &  (N.  Y.)  96;  Woods  v.  North,  (i 
Eng.  Enc.   Law,  418.  Humph.     (Tenn.)     309;     Mclnnis 

7.  1   Stimson,   Am.   St.   Law,    §  v.  Lyman,  62  Wis.  191,  22  N.  W. 


2120  Eeal  Property.  [§  545 

The  view  that  the  conveyance  operates  to  transfer 
the  after-acquired  title  is  frequently  based  on  the  theory 
that  circuity  of  action  is  thereby  avoided,  the  title  being 
given  to  the  grantee  instead  of  compelling  him  to  sue  on 
the  grantor's  covenant  for  the  damage  caused  by  the 
want  of  such  title.  But,  as  before  indicated,  so  far  as  the 
estoppel  of  the  grantor  is  concerned,  the  presence  of  a 
covenant  for  title  is  immaterial,  it  being  sufficient  if 
the  intention  to  convey  a  certain  estate  appears  from 
any  part  of  the  conveyance,'^"^^  and  as  shown  by  an 
able  writer,  even  when  there  are  such  covenants,  the 
estoppel  frequently  operates  although  there  is  no  right 
of  action  on  a  covenant.^^  The  theory  referred  to,  of 
avoidance  of  circuity  of  action,  however  satisfactory 
it  may  be  in  many  cases,  does  not  serve  to  explain  the 
decisions  as  a  whole,  and  as  stated  by  the  same  author- 
ity,^2  the  only  satisfactory  theory  in  this  connection  is 
that  the  courts  have  merely  applied,  under  common 
law  forms,  the  equitable  principle  that,  where  one 
having  no  title  or  an  imperfect  title,  purports  to  convey 

405.     Contra,   King  v.    Gilson,    32  liable  on  the  covenant;    (3)  when 

111.   355;    Baxter   v.   Bradbury,    20  the  state   is  held  to  be  estopped, 

Me.   260;    Reese  v.  Smith,  12  Mo.  though    not    liable    on    the    cov©- 

344;    Farmers'  Bank  v.  Glenn,  68  nant;     (4)    when    the    grantor    is 

N.    C.    35;    Knowles    v.    Kennedy,  estopped,     though     exempt     from 

82    Pa.    445;     Boulter    v.    Hamil-  liability    on    the    covenant    owing 

ton,   15   U.   C.   C.   P.   125.  to  a  discharge  in  bankruptcy;  and 

9-10.     Ante,  §  545(a),  notes  4,  5.  (5)   when  he  is  estopped,  thoilgh 

11.     Rawle,  Covenants  for  Title  the     claim     on    the     covenant    is 

(5th   Ed.)    §    251,   where   the    fol-  barred    by    limitations.      See    the 

lowing    cases    in    which    the    es-  cases    there   cited,    and    also    cita- 

toppel    has   been   held   to    operate  tions    in     11    Am.    &    E.    Encyc. 

in    the    absence    of    any    liability  Law     (2d     Ed.)     413.      But    that 

on    the     covenants     are     enumer-  there     is     no     estoppel     in     case 

ated;    (1)    When   the   estoppel   is  there    is    no    liability    upon    the 

sought     to    be     enforced     against  covenants  for  title  see   Smiley   v. 

a   purchaser   of   the   subsequently-  Fries     104     111.     416;     Webber    v. 

acquired    title,    and    not    against  Webber,    6    Me.    127;      Goodel    v. 

the    grantor    himself;     (2)    when  Bennett  22  Wis.  565. 
a     married     woman     is     estopped  12.     Rawle   Covenants  for  Title 

(in   some   states)    to   claim   after-  (5th    Ed.)    §    264. 
acquired     property,     though     not 


§  545]  Estoppel.  2121 

a  good  title  to  another,  and  afterwards  acquires  the 
land  under  another  title,  he  may  be  compelled  to  con- 
vey to  such  other  the  title  so  acquired.  That  is,  if  an 
attempted  conveyance  of  a  certain  estate  or  interest  in 
land  is  ineffective  by  reason  of  the  fact  that  the  grantor 
has  not  title  to  the  land  at  the  time  of  the  conveyance, 
equity  will  regard  the  attempted  conveyance  as  a  con- 
tract to  convey,  and  will  compel  specific  performance 
thereof  upon  his  subsequent  acquisition  of  title. ^^  And 
the  courts  of  this  countrj^  in  so  far  as  they  regard  the 
after  acquired  title  as  actually  passing  to  the  grantee, 
have  merely  taken  the  further  step  of  regarding  as 
done  what  equity  would  compel  to  be  done. 

(b)     Character  of  conveyance.     Since  the  es- 


toppel of  the  grantor  to  assert  the  after  acquired  title 
is  based  upon  the  consideration  that  by  his  conveyance 
he  purported  to  convey  some  certain  estate  or  interest, 
there  can  be  no  such  estoppel  when  the  conveyance 
undertakes  to  transfer  merely  such  an  estate  or  interest 
as  the  grantor  has,^^  and  the  fact  that  such  a  convey- 

13.     Taylor     v.     Debar     1     Ch.  123  S.  W.  350.     See  Judge  Hare's 

Cas.     274;      Noel     v.     Bewley,     3  note,  2  Smith's  Leading  Cas.   (8th 

Simons,    103;    Smith   v.    Baker,    1  Am.  Ed.)  at  p.  850. 

Y.    &    Col.    C.    C.    223;     Jones    v.  14.     Vary    v.     Smith,    162    Ala. 

Kearney,    1   Dru.   &  W.   134,   159;  457,  50  So.  187;   Quivey  v.  Baker, 

In    re    Bridgewater's     Settlement  37    Cal.    465;     Dailey    v.    Spring- 

(1910),    2    Ch.    342;     Holyrood   v.  field,   144   Ga.   395,   87   S.   E.   479; 

Marshall,   10  H.   L.   Cas.   191,   211  Benneson   v.   Aiken,   102    111.    284. 

per    Lord    Westbury;     Wright    v.  40    Am.    Rep.    592;    Harriman    v. 

Shumway,    1    Biss.    23;     Goodson  Gray,   49   Me.   537;    Fay  v.   Wood, 

V.    Beacham,    24    Ga.    150;     Miss-  65     Mich.     390,    32     N.    W.     614; 

issippi    Sawmill    Co.    v.    Douglas,  Gibson  v.   Chouteau,  39  Mo.   536; 

107  Miss.   678,  65  So.  885;    Lewis  Perrin    v.    Perrin,    62    Tex.    477; 

V.    Baird,   Fed.    Cas.    No.    8,316,    3  Jourdain    v.    Fox,    90   Wis.    99,   62 

McLean,    80;     Hannon    v.    Chris-  N.   W.    936.     But   in    South    Caro- 

topher,   34   N.   J.   Eq.   459;    Buck-  lina    a    conveyance    of    "all    my 

ingham    v.    Hanna,    2     Ohio     St.  right    title   and    interest"    in    cer- 

551,     558;     Chew    v.     Barnet,     11  tain    land    has   been    regarded    as 

Serg.  &  R.  389;   Jordan  v.  Cham-  creating     the     estoppel,     on     the 

bers,    226    Pa.    573,    75    Atl.    956;  theory,    apparently,    that    such    a 

Taylor  v.  Swafford,  122  Tenn.  30.T,  conveyance    is   a    quitclaim    deed, 


2122 


Real  Property. 


[§  545 


ance  contains  covenants  for  title  does  not  change  its 
character  in  this  respect. ^^ 

Likewise,  if  the  conveyance  purports  to  pass  a 
limited  or  partial  interest  only,  the  estoppel  extends 
only  to  such  interest,  even  though  the  grantor  subse- 
quently acquires  a  greater  interest.^^  And,  if  a  con- 
veyance is  in  terms  subject  to  a  mortgage,  the  subse- 
quent acquisition  by  the  grantor  of  the  mortgagee's 
interest  does  not  enure  to  the  grantee's  beneiit^  pro- 
vided the  covenant  for  title  expressly  excepts  the  mort- 
gage,^'^  and,  it  would  seem,  even  though  there  is  no  such 
express  exception,  since  the  covenant  may  well  be 
regarded  as  restricted  by  the  character  of  the  interest 
which  the  conveyance  purports  to  convey.^^  And  so  if 
a  married  woman  joins   in  her  husband's   conveyance 


and  a  quitclaim  deed  is  effectual 
as  a  conveyance.  Blackwell  v. 
Harrelson,  99  S.  C.  264,  84  S.  E. 
33>  See  post,  this  section,  notes 
20-24. 

15.  Hanrick  v.  Patrick,  119  U. 
S.  156,  175,  30  L.  Ed.  396;  Kim- 
ball V.  Semple,  25  Cal.  440;  Hol- 
brook  V.  Debo,  99  111.  372; 
Stephenson  v.  Boody,  139  Ind. 
60,  38  N.  E.  331;  Bennett  v. 
Davis,  90  Me.  457,  38  Atl.  372; 
Blanchard  v.  Brooks,  12  Pick. 
(Mass.)  47;  Bogy  v.  Shoab,  13 
Mo.  365;  Bell  v.  Twilight,  26  N. 
H.  401;  Coble  v.  Barringer,  171 
N.  C.  448,  L.  R.  A.  1916E,  901, 
88  S.  E.  518;  White  v.  Brocaw, 
14  Ohio  St.  339;  Rawle,  Cove- 
nants for  Title,   §   250. 

But  the  presence  of  a  cove- 
nant for  title  may  affect  the 
construction  of  the  instrument 
as  showing  an  intention  not  lo 
convey  merely  such  estate  or 
Interest  as  the  grantor  has.  Mills 
V.  Catlin,  22  Vt.  98;  Jones  v. 
King,   25   111.   383;    Baker  v.   Aus- 


tin, 174  N.  C.  433,  93  S.  E.  949; 
Bayley  v.  McCoy,  8  Ore.  259; 
Blackwell  v.  Harrelson,  99  S.  C. 
264,  84  S.  E.  233.  Compare, 
as  to  the  North  Carolina  law. 
Coble  V.  Barringer,  171  N.  C. 
448,  L.  R.  A.  1916E,  901,  88  S. 
E.  518;  and  see  Rawle,  Cove- 
nants   for   Title,    §§    298,   299. 

16.  Wheeler  v.  Aycock,  109 
Ala.  146,  19  So.  497;  Gill  v. 
Grand  Tower  Min.  Co..  92  111. 
249;  Stoepler  v.  Silberberg,  220 
Mo.  258,  119  S.  W.  418;  Mclnnis 
V.  Pickett,  65  Miss.  354,  3  So. 
660;  Kent  v.  Watson,  22  W.  Va. 
561;  Simanek  v.  Nemetz,  120 
Wis.  42,  97  N.  W.  508;  Gillen 
v.  Powe,  219  Fed.  553,  135  C. 
C.  A.  321. 

17.  Huzzey  v.  Heffernan,  143 
Mass.  232,  9  N.  E.  570. 

18.  Jaclfson  v.  Hoffman,  9 
Cow.  (N.  Y.)  271;  Bricker  v. 
Bricker,  11  Ohio  St.  240.  Con- 
tra, Ayer  v.  Philadelphia  &  B. 
Face  Brick  Co.,  159  Mass.  84, 
34     N.     E.     177;     discussed     and 


§  545] 


Estoppel. 


212rl 


merely  to  release  her  dower,  a  title  subsequently  ac- 
quired by  her  will  not  enure  to  the  benefit  of  the 
grantee  in  the  conveyance. ^^ 

Not  infrequently  it  is  said  that  the  grantor  in  a 
quitclaim  deed  is  not  estopped  to  assert  an  after- 
acquired  title, -^'  but  unfortunately  the  courts  do  not  al- 
ways clearly  indicate  what  they  mean  by  a  quitclaim 
deed.  Occasionally  they  use  the  expression  in  this  con- 
nection to  describe  a  conveyance  which  purtDorts  in 
teniis  to  transfer  merelv  such  interest  as  the  i^rantor 


criticized  in  7  Harv.  Law  Rev. 
at  p.  429.  And  see  Rawle,  Cove- 
nants for   Title,   §   298. 

That  an  exception  of  a  mort- 
gage in  a  covenant  against  in- 
cumbrances does  not  extend  to 
the  covenant  of  warranty  in 
the  same  instrument,  so  as  to 
exclude  an  estoppel,  see  Sand- 
wich Mfg.  Co.  V.  Zellmer,  48 
Minn.  408;  Rooney  v.  Koenig,  80, 
Minn.  483,  83  N.  W.  399.  See,  as 
to  this  last  case,  14  Harv.  Law 
Rev.     233. 

19.  Sanford  v.  Kane,  133  111. 
199,  8  L.  R.  A.  724,  23  Am.  St. 
Rep.  602,  24  N.  E.  414;  Miller 
V.  Miller,  140  Ind.  174,  39  N. 
E.  547;  O'Neill  v.  Vanderburg, 
25  Iowa,  104;  Raymond  v.  Holden, 
2  Cush.  (Mass.)  270;  Griffin  v. 
Sheffield,    38    Miss.   359. 

20.  Quivey  v.  Baker,  37  Cal. 
465;  Habig  v.  Dodge,  127  Ind. 
31.  25  N.  E.  182;  Haskett  v. 
Maxey,  134  Ind.  182,  19  L.  R.  A. 
379,  33  N.  E.  358;  French  v. 
Bartel  &  Miller,  164  Iowa,  677, 
146  N.  W.  754;  Fisher  v.  Hal- 
lock,  50  Mich.  465,  15  N.  W.  552; 
People  V.  Miller,  79  Mich.  93, 
44  N.  W.  172;  Ernst  v.  Ernst, 
178  Mich.  100.  144  N.  W.  513.  51 
L.    R.    A.    (N.    S.)    317;    Jackson 


V.  Winslow,  9  Cow.  (N.  Y.)  18; 
Harden  v.  Collins,  8  Nev.  4^; 
Perrin  v.  Perrin,  62  Tex.  477. 
In  Illinois  it  is  so  provided  by 
statute.  Wells  v.  Glos,  277  111. 
516,    115    N.    E.    658. 

In  Hagensick  v.  Castor,  53 
Neb.  495,  73  N.  W.  932,  it  was 
held  that  although  an  instru- 
ment was  in  the  ordinary  form 
of  a  quitclaim  deed,  yet  since 
the  grantors  described  them- 
selves as  the  heirs  of  A,  wrong- 
ly believing  A  to  be  dead,  they 
in  effect  purported  to  convey 
an  estate  of  inheritance  vested 
in  them  as  heirs  at  law  of  A, 
and  could  not,  on  A's  actual 
death,  assert  the  title  which  then 
passed   to  them   as  A's  heirs. 

It  has  been  said  that  the  excep- 
tion to  the  general  rule  in  the 
case  of  a  quitclaim  deed  does 
not  apply  when  the  title  subse- 
(juently  acquired  by  the  grantor 
is  "merely  an  evidence  and  forti- 
fication of  the  title"  which  ho 
previously  had.  Ford  v.  Axel- 
son,  74  Neb.  92,  103  N.  W.  1039; 
Johnson  v.  Johnson,  173  Ky.  701, 
191  S.  W.  672.  This  might  mean 
merely  that  the  effect  of  tho 
quitclaim  as  passing  what  tho 
grantor    has    at    the    time    of    its 


2124 


Real  Propbety. 


[§  545 


may  have,^^  a  form  of  conveyance  which,  as  before 
stated,^^  gives  no  room  for  an  estoppel.  Occasionally 
the  courts  apparently  regard  an  instrument  as  a  quit- 
claim deed  for  this  purpose  if  the  words  ''release"  or 
''quitclaim,"  or  both,  appear  as  operative  words  there- 
in,-^ presumably  on  the  theory  that  the  use  of  such 
words  precludes  a  construction  of  the  instrument  as 
purporting  to  pass  any  certain  estate  or  interest.  Oc- 
casionally the  language  used  suggests  that  the  court 
regards  as  a  quitclaim  deed  any  conveyance  in  which 
there  are  no  covenants  for  title.-^ 

The  doctrine  of  estoppel  to  assert  an  after  acquired 
title  has  been  applied  in  the  case  of  a  mortgage  as  well 


execution  is  not  affected  by  the 
fact  that  he  subsequently  ob- 
tains a  deed  purporting  to  con- 
vey what  he  already  has,  but 
the  statement  has  also  been 
applied  to  a  case  in  which  the 
grantor  had  an  equitable  title 
merely  at  the  time  of  the  execu- 
tion of  the  quitclaim  deed,  and 
thereafter  obtained  the  legal  title. 
Johnson  v.  Johnson,  173  Ky.  701, 
191    S.   W.    672. 

21.  As  in  Anderson  v.  Yoak- 
um, 94  Cal.  227,  28  Am.  St. 
Rep.  121,  29  Pac.  500;  Frink 
V.  Darst,  14  111.  308,  58  Am. 
Dec.  575;  Benneson  v.  Aiken, 
102  111.  289;  Irish  v.  Steeves, 
154  Iowa,  286,  134  N.  W.  634,  157 
N.  W.  734;  Pring  v.  Swarm,  176 
Iowa,  153;  Nicholson  v.  Caress,  45 
Ind.  479;  Carter  v.  Hosier,  84 
Kan.  361,  114  Pac.  226;  Manson  v. 
Peaks,  103  Me.  430,  69  Atl.  690; 
Butcher  v.  Rogers,  60  Mo.  138; 
Brawford  v.  Wolfe,  103  Mo.  391, 
15  S.  W.  426;  Taft  v.  Stevens,  3 
Gray  (Mass.)  504;  Bell  v.  Twi- 
light, 26  N.  H.  401;  Dorris  v. 
Smith.    7    Ore.    267;     Lindsay    v. 


Freeman,  83  Tex.  259,  18  S.  W. 
727;  Balch  v.  Arnold,  9  Wyo. 
17,    59    Pac.    434. 

22.  Ante,  this  section,  notes 
14,   15. 

23.  As  in  Avery  v.  Akins,  74 
Ind.  283;  Bruce  v.  Luke,  9  Kan. 
201;  Wholey  v.  Cavanaugh,  88 
Cal.  132,  25  Pac.  1112;  Frost  v. 
Missionary  Society,  56  Mich.  62, 
22  N.  W.  ,189.  Contra,  Ford  v. 
Axelson,  74  Neb.  92,  103  N.  W. 
1039.  This  is  presumably  the 
character  of  instrument  intended 
by  the  Mississippi  statute,  which 
provides  that  a  conveyance  of 
quitclaim  and  release  shall  estop 
the  grantor  from  asserting  a 
subsequently  acquired  title.  It 
could  hardly  mean  a  conveyance 
of  such  interest  as  the  grantor 
may  have.  See  Bramlett  v.  Rob- 
erts, 68  Miss.  325,  10  So.  56. 

24.  Bohon  v.  Bohon.  78  Ky. 
408;  Dart  v.  Dart,  7  Conn.  256; 
Tillotson  V.  Kennedy,  5  Ala.  413, 
39  Am.  Dec.  330;  Cramer  v. 
Benton,  64  Barb.  (N.  Y.)  522; 
Jackson  v.  Hubble,  1  Cow.  (N. 
Y.)     613. 


§  545] 


Estoppel. 


2125 


as  in  that  of  an  absolute  conveyance,  more  particularly 
when  the  mortgage  instrument  contains  a  covenant 
of  warranty  or  other  covenant.^ ^  And  it  has  been  so 
a.pplied  not  only  in  jurisdictions  in  which  the  legal  title 
passes  to  the  mortgagee,-'^  but  in  other  jurisdictions 
likewise.-"  There  appears  to  be  no  difference,  as  re- 
gards the  doctrine  of  estoppel,  between  the  principles 
applicable  to  a  mortgage  and  to  an  absolute  convey- 
ance, and  the  statements  here  made  in  reference  to  the 
latter  will  ordinarily  apply  as  well  to  the  former.^''^ 

If  a  conveyance  is  for  any  reason  absolutely  in- 
valid, there  is  no  estoppel  upon  the  grantor  as  to  an 
after-acquired  title.-^     But  that  the  conveyance  is  in- 


25.  Jones  v.  Wilson,  57  Ala. 
122;  Curren  v.  Driver,  33  Ind. 
480;  West  Michigan  Park  Ass'n 
V.  Pere  Marquette  R.  Co.,  172 
Mich.  179,  137  N.  W.  799;  Hagen- 
sick  V.  Castor,  53  Neb.  495,  73 
N.  W.  932;  Smith  v.  De  Russy, 
29  N.  J.  Eq.  407;  Jackson  v. 
Littell,  56  N.  Y.  108;  Donovan 
V.  Twist,  85  N.  Y.  App.  Div.  130, 
83  N.  Y.  Supp.  76;  Jarvis  v. 
Aikens,  25  Vt.  635;  DosweU  v. 
Buchanan,  3  Leigh  (Va.)  365, 
23   Am.  Dec.   280. 

26.  Howze  v.  Dew,  90  Ala. 
178,  24  Am.  St.  Rep.  783,  7  So. 
239;  Hoyt  v.  Dimon,  5  Day 
(Conn.)  479;  Gochenour  v.  Mow- 
ry.  33  III.  331;  Dagger  v.  Mu- 
tual Union  Loan  &  Building 
Ass'n,  146  111.  283,  33  N.  E.  946; 
Parsons  v.  Little,  66  N.  H.  339, 
20  Atl.  958;  White  v.  Patten,  24 
Pick.  (Mass.)  324;  Cockrill  v. 
Bane,  94  Mo.  444,  7  S.  W.  480; 
Northrup  v.  Ackerman,  84  N.  J. 
Eq.  117,  92  Atl.  909;  Rauch  v. 
Dech,  116  Pa.  St.  157,  2  Am.  ftt. 
Rep.  598,  9  Atl.  180. 

27.  Clark  v.  Boyreau,  14  Cal. 
636;     Yerkes    v.    Hadley,    5    Dak. 

2  R.  P.— 59 


324,  2  L.  R.  A.  363,  40  N.  W. 
340;  Hill  v.  O'Bryan,  104  Ga. 
137,  30  S.  E.  996;  Rice  v.  Kelso, 
57  Iowa,  115,  7  N.  W.  3,  10  N. 
W.  335;  Whitley  v.  Johnson,  135 
Iowa,  620,  113  N.  W.  550;  Thalls 
V.  Smith,  139  Ind.  496,  39  N.  E. 
154;  Watkins  v.  Houck,  44  Kan. 
502,  24  Pac.  361;  Gray  v.  Franks, 
86  Mich.  382,  49  N.  W.  130; 
Caple  V.  Switzer,  122  Mich.  636, 
81  N.  W.  560;  Osborn  v.  Scottish 
American  Co.,  22  Wash.  83,  60 
Pac.  49. 

27a.  If  one  who  has  no  title  to 
land  undertakes  to  mortgage  the 
land  to  one  who  has  a  perfect 
title,  and  subsequently  acquiries 
the  land  by  descent  from  the 
latter,  he  is  not  estopped,  it  has 
been  held,  to  assert  such  title 
as  against  the  latter's  repre- 
sentative. "Neither  the  mort- 
gagee nor  her  representative  can 
deny  that  her  own  title  was 
good,  because  she  had  taken  a 
conveyance  from  one  having  no 
title."  Harding  v.  Springer,  14 
Me.   407,   31    Am.    Dec.   61. 

28.  Kercheval  v.  Triplett,  1 
A.    K.   Marsh    (Ky.)    493;    Patter- 


2126 


Real  Propeety. 


[§  545 


valid  as  to  one  grantor  obviously  does  not  affect  the 
estoppel  upon  another  grantor. ^^ 

(c)     Necessity    and    character    of    covenants. 


Applying  the  view,  above  referred  to,  that  a  conveyance 
is  given  the  effect  of  transferring  an  after- acquired 
title  as  a  means  of  avoiding  the  necessity  of  suing  on 
the  covenant  for  title,  it  has  frequently  been  asserted 
that  the  presence  of  such  a  covenant  is  necessary  in  or- 
der that  an  after-acquired  title  may  pass.""  And  the  cases 
occasionally  distinguish  between  the  different  classes  of 
covenants  as  regards  their  efficacy  in  this  respect.  Thus 
a  covenant  of  warranty  has  been  referred  to  in  many 
cases  as  effective  for  this  purpose,^ ^  frequently  as  the 
result  of  a  mistaken  application  of  the  doctrine  of  war- 
ranty at  common  law,^^  and  the  same  effect  has  been 
given  to  a  covenant  for  quiet  enjoyment,^^  while  it 
has,  in  sOme  states,  been  denied  to  a  covenant  for  seisin 


son  V.  Pease,  5  Ohio,  191;  Kemery 

V  Zeigler,  176  Ind.  660,  96  N. 
E.    850. 

29.  Blakeslee  v.  Mobile  Life 
Ins.    Co.,    57    Ala.    265;    Chapman 

V  Abrahams,  61  Ala.  108;  Well- 
born V.  Finley,  7  Jones  L.  (N. 
C.)    228. 

30.  See  cases  cited  11  A.  &  E. 
Encyc.    Law    (2nd    Ed.)     409. 

31.  Schuman  v.  George,  110 
Ark.  486,  161  S.  W.  1038;  Doe 
d.  Potts  V.  Roe,  3  Houst,  (Del.) 
369,  11  Am.  Rep.  757;  Oliver  v. 
Holt,  141  Ga.  126,  80  S.  E.  630; 
Walton  V.  Follansbee,  131  III. 
147,  23  N.  E.  332;  Childs  v.  Mc- 
Chesney,  20  Iowa,  431,  89  Am. 
Dec.  545;  Creekmore  v.  Bryant, 
158  Ky.  166,  164  S.  W.  337; 
Bennett  v.  Davis,  90  Me.  457,  38 
Atl.  372;  Knight  v.  Thayer,  125 
Mass.  25;  Morris  v.  Jansen,  99 
Mich.  436,  58  N.  W.  365;  De- 
merse  v.  Mitchell,  187  Mich.  683, 


164  N.  W.  97;  Barron  v.  H.  D. 
Williams  Cooperage  Co.,  185  Mo. 
App.  625,  171  S.  W.  683;  Moore 
V.  Rake,  26  N.  J.  L.  574;  Ford 
V.  McBrayer,  171  N.  C.  420,  88 
S  E.  736;  Broadwell  v.  Phillips. 
30  Ohio  St.  255;  Blackwell  v. 
Harrelson,  99  S.  C.  264,  84  S.  E. 
233;  Johnson  v.  Branch,  9  S.  D. 
116,  62  Am.  St.  Rep.  857,  68  N. 
W.  173;  Ferguson  v.  Prince,  136 
Tenn.  543,  190  S.  W.  548;  Raines 
V.    Walker,   77    Va.    95. 

32.  2  Smith's  Leading  Cases, 
Judge  Hare's  note  (8th  Am.  Ed.) 
841  et  seq;  Rawle,  Covenants  for 
Title,  §§  252,  254;  Bigelow,  Es- 
toppel   (6th   Ed.)    pp.   453,   463. 

33.  Smith  v.  Williams,  44 
Mich.  240,  6  N.  W.  662;  Long 
Island  R.  Co.  v.  Conkiin,  29  N. 
Y.  572;  Tully  v.  Taylor,  84  N. 
J.  Eq.  459,  L.  R.  A.  1918B,  731, 
94  Atl.  572.  See  Taggart  v. 
Risley,   4  Ore.   235. 


§  545]  Estoppel.  2127 

or  for  good  right  to  convey.'^^  On  the  other  hand  there 
are  numerous  decisions  and  judicial  dicta  that  if  the 
conveyance  purports  to  transfer  some  certain  estate, 
the  grantor  is  estopped,  irrespective  of  the  presence  of 
covenants  therein,  to  assert  that  such  an  estate  did  not 
•pass  thereby.^  ^ 

"When  the  conversance  does  not  purport  to  convey 
such  interest  only  as  the  grantor  has,  or  a  limited  in- 
terest only,  the  fact  that  a  covenant  therein  is  special, 
that  is,  against  the  acts  of  the  grantor  and  those  claim- 
ing under  him  only,  does  not  appear  to  aifect  its  opera- 
tion by  way  of  estoppel.^^ 

(d)     Cases    to    which    doctrine    inapplicable. 

The  doctrine  that  a  grantor  is  estopped  to  assert  an 
after-acquired  title  applies  only  when  such  assertion 
would  involve  a  denial  that  the  conveyance  passed  the 
interest  or  estate  which  it  purported  to  pass.  Conse- 
quently the  grantor  may  freely  assert  a  title  subse- 
quently acquired  by  him  from  the  grantee  either  by 
voluntary    conveyance,^ '^    judicial    or    execution    sale,^^ 

34.     Allen    v.    Sayward,    5    Me.  Short,  —  Tex.   Civ.   App.  — ,   151 

227,   17   Am.   Dec.   221;    Doane   v.  S.  W.  633. 

Willcutt,  5   Gray    (Mass.)    333,   66  35.     Ante,   this   section,   note   5, 

Am.    Dec.    369;    Chauvin    v.   Wag-  36.     Kimball   v.   Blaisdell,   5   N. 

ner,   18  Mo.   531.     Contra,  Wight-  H.  533;    Gibbs  v.  Thayer,  6  Cush. 

man    v.    Reynolds,    24    Miss.    675.  (Mass.)    30;    Coal    Creek    IMin.    & 

And  see  Irvine  v.  Irvine,  9  Wall.  Mfg.  Co.  v.  Ross,  12  Lea   (Tenn.) 

(U.  S.)    617,  19  L.  Ed.  800;    Van-  1.      Compare,    Bennett    v.    Davis, 

derheyden     v.     Crandall,     2     Den.  90   Me.    457,   38   Atl.   372. 

(N.   Y.)    9.  37.     Condit    v.    Bigalow,    64    N. 

It     has     been     held     that     the  J.    Eq.    504,    54   Atl.    160. 

covenant     against      incumbrances  38.     Erwin   v.    Morris,   26   Kan. 

which,  by  a  state  statute,   is  im-  664;   Rauch  v.  Dech,  116  Pa.  157, 

plied   from    the   use   of   the   word  2   Am.   St.   Rep.    598,   9    Atl.    180; 

"grant"    or     "convey"     was    suflfi-  Goode  v.   Bryant,  118  Va.   314,  87 

clent  for  this  purpose.     Morris  v.S.   E.  588. 


2128  Eeal  Property.  [§  545 

adverse  possession,^®  tax  sale,^"  or  otherwise.*^  In  such 
a  case  the  grantor  asserts,  not  that  the  conveyance 
failed  to  pass  the  interest  which  it  purported  to  pass, 
but  merely  that,  after  such  interest  had,  by  the  convey- 
ance, become  vested  in  the  grantee,  it  was  divei-;ted  out 
of  him  and  vested  in  the  grantor.  Nor  is  the  grantor 
estopped  to  assert  that,  under  the  circumstances  of 
the  case,  while  the  legal  title  was  by  the  conveyance 
vested  in  the  grantee,  the  beneficial  interest  was  vested 
in  another.*^ 

If  one  who  has  conveyed  land  in  his  own  right 
subsequently  acquires  a  title  thereto,  not  in  his  own 
right  but  as  trustee  for  another,  the  doctrine  her^^  under 
discussion  does  not  apply.  One  cannot  thus  alfect  the 
interest  of  another  by  purporting  to  convey  more  than 
he  has.^^  But  one  may,  it  seems,  by  a  conveyance  in 
an  official  or  representative  capacity,  by  which  he  pur- 
ports to  convey  a  certain  interest  or  estate,  be  estopped 
to  assert  a   title   subsequently  acquired  by  him  in  his 

39.  Abbett  v.  Page.  92  Ala.  571,  Hannah  v.  Collins,  94  Ind.  201; 
9  So.  332;  Doolittle  v.  Robert-  Porter  v.  Lafferty,  33  Iowa,  254; 
son,  109  Ala.  412,  19  So.  851;  Gardner  v.  Gerrish,  23  Me.  46 
Garibaldi  v.  Shattuck,  70  Cal.  Frank  v.  Caruthers,  108  Mo.  569, 
511,    11    Pac.    778;    Berthelemy   v.  18    S.   W.   927. 

Johnson,  3  B.  Mon.    (Ky.)    90,  38  41.     Thielen    v.    Richardson,    35 

Am.    Dec.    179;    Hines    v.    Robin-  Minn.  509,  29  N.  W.  677. 

son,    57    Me.    324,    99    Am.    Dec.  42.     Harrold     v.     Morgan,     66 

772;     Stearns    v.     Hendersass,     9  Ga.    398;    Condit    v.    Bigalow,    64 

Gush.    (Mass.)    497,    57    Am.    Dec.  N.    J.    Eq.    504,    54   Atl.    160. 

65;     Horbach    v.    Boyd,    64    Neb.  43.     Dewhurst     v.     Wright,     29 

129,    89    N.     W.     644;     Tilton    v.  Fla.    223,    10    So.    682;     Phillippi 

Emery,  17  N.  H.  536;   Sherman  v.  v.     Leet,    19    Colo.    246,    35    Pac. 

Kane,    86    N.    Y.    57;    Johnson    \.  540;    Kelley    v.    Jenness,    50    Me. 

Farlow,    13    Ired,    L.    (35    N.    C.)  455,    79    Am.    Dec.    623;     Harlan 

84;    Chatham  v.  Lonsford,  149  N.  v.    Jordan,    104    Me.    49,    70    Atl. 

C.    363,    63    S.    E.    81;     Harn    v.  1066;     Runlet    v.    Otis,    2    N.    H. 

Smith,    79    Tex.    310,    23    Am.    St.  167:    Wark   v.   Willard,   13    N.   H. 

Rep.   340,   15    S.   W.   240.  389;    Jackson  v.   Mills,    13    Johns. 

40.  Erwin  v.  Morris,  26  Kan.  (N.  Y.)  463;  Buckingham  v. 
664;  Foster  v.  Johnson,  89  Tex.  Hanua.  2  Ohio  St.  551;  Burchard 
640,  36  S.  W.  67.  But  only  if  v.  Hubbard,  11  Ohio,  316;  Fre- 
the  sale  was  for  taxes  which  telliere  v.  Hindes,  57  Tex.  392; 
came    due    after    the    conveyance.  Newton  v.   Easterwood,  Tex.  Civ. 


§  545]  Estoppel.  2129 

own  right/^  particularly  if  the  instrument  contains  a 
personal  covenant  by  him  for  title,^^  it  being  recognized 
that  he  may  by  such  a  conveyance  be  estopped  to  assert 
a  title  which  he  actually  has  at  the  time  thereof.'*^ 

In  the  case  of  a  purchase  money  mortgage,  the 
mortgage  is  properly  to  be  construed  as  purporting  to 
convey  or  charge  such  interest  only  as  the  mortgagor 
acquired  by  the  conveyance  from  the  mortgagee,  and 
consequently,  if  he  acquired  no  title  or  an  imperfect 
title  thereby,  the  mortgagee  cannot  claim  the  benefit 
of  a  title  subsequently  acquired  by  the  mortgagor,  the 
purchaser.^'^  And  so,  it  would  seem,  when  cotenants 
claiming  under  a  single  title  make  voluntary  partition, 
the  mutual  conveyances  executed  by  them  to  carry 
the  partition  into  effect  may  properly  be  regarded  as 
purporting  to  convey  only  such  title  as  they  all  have, 
and  if  one  subsequently  acquires  a  paramount  title,  he 
should  not  be  estopped  to  assert  it  as  against  the 
others,*®  a  result  which  might  also  be  attained  on  the 
theory*^  that  the  purpose  and  effect  of  such  convey- 
ances is  not  to  transfer  interests  in  land  but  merely 
to  designate  the  share  of  each  of  the  parties. ^^ 

App.  — ,  154  S.  W.  646;  Gregory  liams,  85  Tex.  499,  22  S.  W. 
V.  Peoples,   80  Va.  355.  399;    Carbee    v.    Hopkins,    41    Vt. 

44.  Molina      v.      Ramirez,      15      250. 

Ariz.  249,  138  Pac.  17;    Mountain  47.     Randall  v.   Lower,   98    Ind. 

Home  Lumber  Co.  v.   Swartwout,  255:    Brown  v.  Phillips,  40  Mich. 

30    Idaho,    559,    166    Pac.    271.  264.     And  see  Butterfield  v.  Lane. 

45.  Prouty  v.  Mather,  49  Vt.  114  Me.  333,  96  Atl.  233.  Contra, 
425;  See  Morris  v.  Wheat,  8  Hitchcock  v.  Fortier,  65  111.  239. 
App.  D.  C.  379;  Hitchcock  v.  The  latter  case  is  disapproved 
Southern  Iron  &  Timber  Co.,  in  Rawle,  Covenants  for  Title, 
— Tenn.— ,  38  S.  W.  588;  Ver-  §  267;  Bigelow,  Estoppel  (6th 
meule    v.   Vermeule,    113    Me.    74,  Ed.)    448. 

93  Atl.  37.  48.     See    Rector    v.    Waugh.    17 

46.  Rannels  v.  Howe,  145  Fed.  Mo.  26;  Pendill  v.  Marquette 
296,  74  C.  C.  A.  376;  Poor  v.  County  Agric.  Soc.  95  Mich.  491, 
Robinson,  10  Mass.  131;  WeUs  v.  55  N.  W.  384;  Carson  v.  Carson. 
Steckelberg.  52  Neb.  597,  66  Am.  122  N.  C.  645,  30  S.  E.  4;  Doane 
St.  Rep.  529,  72  N.  W.  865;  v.  Willicutt.  5  Gray  (Mass.)  328. 
Kellerman  v.  Miller,  5  Pa.  Super.  49.     Ante,   §   203. 

Ct.    443;    Corzine's   Heirs    v.    Wil-  50.     See    Harrison    v.    Ray.    108 


2130  Real  Propbety.  [§  545 
(e)    Persons  bound  by  the  estoppel.    If,  after 


executing  the  conveyance,  the  grantor  acquires  an 
estate  in  the  land  and  then  dies,  his  heir  is  precluded,  to 
the  same  extent  as  was  the  grantor  himself,  from 
asserting  that  such  after-acquired  title  did  not  enure  to 
the  benefit  of  the  grantee.^^  But  while  the  heir  is 
estopped  to  assert  a  title  subsequently  acquired  by  the 
grantor,  the  heir  is  not  estopped  to  assert  a  title  subse- 
quently acquired  by  him  from  a  source  other  than  his 
ancestor,  the  grantor.^^ 

The  question  whether  one  to  whom  the  grantor, 
after  his  subsequent  acquisition  of  title,  undertakes  to 
make  a  conveyance,  is  estopped,  as  was  the  grantor, 
to  assert  such  subsequently  acquired  title,  is  one  of 
considerable  difficulty.  It  has  been  frequently  said  that 
an  estoppel  by  deed  binds  not  only  parties  but  also 
privies,^^  and  a  like  statement  is  ordinarily  made  in 
regard  to  estoppel  by  misrepresentation.^^  Strictl}^ 
applying  such  a  rule,  the  estoppel  would  operate 
against  a  subsequent  grantee  although  he  is  a  pur- 
chaser for  value  without  notice  of  the  prior  conveyance 
by  his  grantor.  And  there  are  a  considerable  number 
of  cases  which  appear  to  adopt  such  a  view,  that  the 
subsequent    grantee    is    estopped    to    assert   the    after- 

N.   Car.   215,   11   L.  R.   A.   722,  23  K.  A.  162,  25  N.  E.  1013;  Galladay 

Am.    St.    Rep.    57,    12    S.    E.    993;  v.   Knock,    235    111.    412,   85   N.   E. 

Chace   v.    Gregg,   88   Tex.    552,   32  649;      Wilson     v.      Godfrey,     145 

S.  W.  520.  Iowa,    696,   124   N.   W.   875;    Russ 

51.  French  v.  Spencer,  21  How.  v.  Alpaugh,  118  Mass.  369,  19  Am. 
(U.  S.)  228,  16  L.  Ed.  97;  Perry  Rep.  464;  Gorton  v.  Roach,  46 
V.  Kline,  12  Gush.  (Mass.)  118;  Mich.  294,  9  N.  W.  422;  Wm.  D. 
Russ  V.  Alpaugh,  118  Mass.  369,  Cleveland  &  Sons  v.  Smith, — Tex. 
19  Am.  Rep.  464;  Wark  v.  Wil-  Civ.  App.— ,  113  S.  W.  547.  See 
lard,  13  N.  H.  389;  Tefft  v.  Mun-  editorial  note,  10  Columbia  Law 
son,  57  N.  Y.  97;  Du  Rose  v.  Kell,  Rev.    483. 

90   S.   C.   196,  71   S.   E.   371.     See  53.     See    cases    cited    16    Cyclo- 

Chace   v.   Gregg,    88    Tex.    552,   32  pedia  Law  &  Proc.  715;    Bigelow, 

S.  W.  520.  Estoppel    (6th   Ed.)    372. 

52.  Zimmerman  Mfg.  Co.  v.  54.  See  16  Cyclopedia  Law  & 
Wilson,  147  Ala.  275,  40  So.  515;  Proc.  778;  Bigelow,  Estoppel,  629. 
Ebey  v.  Adams,  135  111.  80,  10  L. 


§  545] 


Estoppel. 


2151 


acquired  title  of  his  grantor,  as  against  a  prior  grantee 
of  the  latter,  without  reference  to  whether  sucli  subse- 
quent grantee  has  or  has  not  notice  of  the  iDrior  con- 
veyance.^^ In  some  cases,  however,  a  contrarj^  view 
is  asserted,  expressly  or  by  implication,  that  the  subse- 
quent grantee  is  not  bound  by  the  estoppel  unless  he 
had  notice  of  the  prior  conveyance  by  his  grantor.^^*^ 
In  several  of  these  latter  cases  the  question  chiefly 
discussed  is  whether  the  subsequent  grantee  is  f^harged 
with  notice  by  the  record  of  the  prior  conveyance,  this 
occurring  before  his  grantor  acquired  title.  This  ques- 
tion has  ordinarily  been  answered  in  the  negative, 
that  is,  the  purchaser  was  regarded  as  under  no  obliga- 
tion   to    search    the    records    for    conveyances    b}^    his 


55.  Letson  v.  Roach,  5  Kau. 
App.  57,  47  Pac.  321;  Morrison 
V.  CaldweU,  5  T.  B.  Mon.  (Ky.) 
426,  17  Am.  Dec.  84;  Powers  v. 
Patten,  71  Me.  583;  White  v. 
Patten,  24  Pick  (Mass.)  324; 
Knight  V.  Thayer,  125  Mass.  25; 
Ayer  v.  Philadelphia  &  B.  Face 
Brick  Co.,  159  Mass.  84,  34  N. 
E.  177;  Philly  v.  Sanders,  11 
Ohio  St.  490,  78  Am.  Dec.  316; 
McCusker  v.  McEvey,  9  R.  I. 
528,  10  R;  I.  606,  11  Am.  Rep. 
295;  Jarvis  v.  Aikens,  25  Vt. 
635.  See  Owen  v.  Brookfort,  208 
111.  35,  69  N.  E.  952;  Colonial  & 
rj.  S.  Mtge.  Co.  V.  Li°.  95  Ark. 
253,  129  S.  W.  84;  Organ  v. 
Bunnell— Mo.— ,   184   S.   W.   102. 

A  like  doctrine  has  been  In 
one  case  applied,  as  against  a 
purchaser  of  land  to  which  an 
casement  appertained,  in  favor  of 
one  to  whom  the  servient  tene- 
ment had  previously  been  con 
veyed,  with  a  covenant  of  war- 
ranty, it  being  held  that  the 
grantor  of  the  servient  tene- 
ment    was     estopped     to     assscrt 


the  easement  against  his  grantee, 
upon  acquiring  the  dominant  tene- 
ment, and  that  one  to  whom  he 
conveyed  the  latter  was  also 
estopped.  Hodges  v.  Goodspeed, 
20  R.  I.  537,  40  Atl.  373.  See  12 
Harv.  Law  Rev.  at  p.  219. 

56.  Rozell  V.  Chicago  Mill  & 
Lumber  Co.,  76  Ark.  525,  89  S. 
W.  469;  Wheeler  v.  Young,  76 
Conn.  44,  55  Atl.  670;  Way  v. 
Arnold,  18  Ga.  181;  Donahue  v. 
Vosper,  189  Mich.  78,  155  N.  W. 
407;  Ford  v.  Unity  Church  Soc, 
120  Mo.  498,  23  L.  R.  A.  561. 
41  Am.  St.  Rep.  711,  25  S.  W. 
394;  Greai  Falls  Co.  v.  Worster, 
15  N.  H.  452  (dictum):  Bing- 
ham V.  Kirkland,  34  N  J.  Eq. 
221;    Farmer's  Loan   &  Trust  Co. 

V  Maltby,  8  Paige  (N.  Y.)  361; 
Doyle  V.  Petroleum  Co.,  44  Barb. 
(N.     Y.)     240     (se7nble);     Calder 

V  Chapman,  52  Pa.  St.  359.  91 
Am.  Dec.  163;  Richardson  v. 
Atlantic  Coast  Lumber  Co.,  93 
S.  C.  254,  75  S.  E.  371;  Bernardy 
V.  Colonial,  etc.,  Mortgage  Co., 
17  S.  D.  637,  98  N.  W.  166;   Green 


2132  Real  Property.  [§  545 

grantor  executed  and  recorded  before  the  grantor  had 
any  title  to  convey,  it  being  sufficient  that  he  searches 
the  records  under  his  grantor  in  order  to  discover  any 
conveyance  made  by  the  latter  after  acquiring  title. ^'^'^ 
A  contrary  view  would  impose  on  every  purchaser  the 
very  serious  burden  of  searching  the  records  for  con- 
veyances made  not  only  by  his  vendor,  but  also  by  his 
vendor's  predecessors  in  title,  for  an  indefinite  time 
back  of  the  date  of  his  or  their  acquisition  of  title." 
The  decisions  above  referred  to,  that  a  purchaser 
without  notice  of  the  previous  conveyance  by  his 
grantor  is  not  estopped  to  assert  the  title  acquired  by 
his  arantor  after  the  previous  conveyance,  appear  ordi- 
narily to  be  based  upon  the  theory  that  a  contrary  view 
would  to  that  extent  defeat  the  purpose  and  spirit  of  the 
recording  laws,  in  giving  priority  to  a  conveyance  which, 
though  first  executed,  was  not  recorded  under  such 
circumstances  as  to  satisfy  the  statutory  requirement 
of  record.  Another  view  which  has  been  suggested 
in  this  regard  is  that,  since  the  claim  of  a  grantee  as 

V.  Morehead,  104  Tex.  254,  136  Mich.  274;  Schoch  v.  Birdsall,  48 
S.  W.  1047,  Ann.  Cas.  1914A,  Minn.  441,  51  N.  W.  382;  Boyd 
1285;  See  Doswell  v.  Buchanan,  v.  Mundorf,  30  N.  J.  Eq.  545. 
3  Leigh  (Va.)  365;  Higgins  v.  57.  See  2  Pomeroy  Eq.  Jur.  § 
Dennis,  104  Iowa,  605,  74  N.  W.  9.  658,  p.  1134  note;  Rawle,  Cove- 
But  a  purchaser  Is  charged  nants  for  Title.  §§  259-261;  note 
with  notice  of  a  conveyance  made  in  17  Harv.  Law  Rev.  at  482. 
by  his  vendor  before  the  latter'*  But  that  the  record  of  the 
acquisition  of  title,  if  such  con-  earlier  conveyance  does  in  such 
veyance  was  recorded  after  such  case  affect  the  subsequent  pur- 
acquisition.  Semon  v.  Terhune,  chaser  with  notice  was  decided 
40  N.  J.  Eq.  364,  2  Atl.  18.  in  Tefft  v.  Munson,  57  N.  Y.  97; 
56a.  The  impropriety  of  re-  (distinguished  in  Oliphant  v. 
quiring  a  search  previous  to  the  Burns,  146  N.  Y.  218,  40  N.  E. 
mortgagor's  acquisition  of  title  980);  Bernardy  v.  Colonial  &  U. 
has  in  several  cases  been  given  S.  Mortg.  Co.,  17  S.  D.  637,  108 
as  a  reason  for  according  prior-  Am.  St.  Rep.  791,  98  N.  W.  166; 
Ity  to  a  purchase  money  mort-  Hale  v.  Hollon,  14  Tex.  Civ.  App. 
gage  as  against  a  mortgage  given  96,  35  S.  W.  843,  36  S.  W.  288; 
previously  by  the  same  party.  Balch  v.  Arnold,  9  Wyo.  17,  59 
Ely  v.  Pingrey,  56  Kan.  17,  42  Pac.  434. 
Pac.  330;   Heffron  v.  Flanigan,  37 


§  545]  Estoppel.  2133 

to  the  subsequently  acquired  title  of  his  grantor  is, 
properly  regarded,  equitable  in  its  nature,^^  it  may,  like 
other  equitable  claims,  not  be  asserted  as  against  sub- 
sequent purchasers  for  value  without  notice. 

As  against  a  subsequent  purchaser  from  the.  same 
grantor  who  took  with  notice  of  the  conveyance  made 
by  the  latter  before  he  acquired  title,^^"  or  wijO  was 
not  a  purchaser  for  value,^^^  the  prior  granteo  can  no 
doubt  assert  the  estoppel  to  the  same  extent  as  he  could 
have  asserted  it  against  the  grantee  himself. 

As  regards  the  question  whether  the  claim  of  the 
person  to  whom  the  conveyance  is  made  before  the 
grantor's  acquisition  of  title  takes  priority  over  the 
claim  under  a  judgment  against  the  grantor,  the  cases 
are  few  in  number  and  not  entirely  in  harmony.  Tak- 
ing first  the  case  of  a  judgment  rendered  before 
the  making  of  the  conveyance,  it  has  been  held  in  one 
state  that,  upon  the  acquisition  of  title  by  the  grantor; 
the  land  becomes  subject  to  the  lien  of  the  judgment, 
in  priority  to  the  grantee's  claim  by  way  of  es'oppel,^" 
and  there  is  also  a  decision  to  the  contrary.'^ ^  It  does 
not  seem  that,  by  reason  of  the  grantor's  lack  of  title  at 
the  time  of  his  conveyance,  the  grantee  should  profit 
at  the  expense  of  the  judgment  creditor,  and  the 
former  decision  appears  to  be  preferable.  In  the  case 
of  a  judgment  rendered  against  the  grantor  after  the 
making  of  the  conveyance  and  before  his  acquis'tion  of 
the  title,  it  has  been  held  that  the  grantee  takes  free  of 
the  lien  of  the  judgment,  on  the  theory,  apparently, 
that  the  grantor,  in  view  of  his  conveyance,  acquires  at 

58.  Ante,   §   545(a),  note   13.  Circle,     60     Mo.     258;     Wark     v. 

59.  See      Editorial      note,      22  Willard,   13    N.   H.   389;    Mann    v. 
Harv.  Law  Rev.  136;  also  the  dis-  Young,  1  Wash.  Terr.  454. 
cussion   by   Mr.    Ewart   as   to   the  59b.     Lindsay    v.    Freeman,    83 
somewhat       analogous       question  Tex.  259,  18  S.  W.  727;    Mann  v. 
of  the  incidence  of  the  burden  of  Young,    1    Wash.    Terr.    454. 

an  estoppel  by  misrepresentation.  60.        Bliss   v.    Brown,   78    Kan. 

Ewart,  Estoppel,  199  et  seq.  467.    96    Pac.    945. 

59a.     Edwards     v.     Hillier,     70  61.     Watkins     v.      Wassell,     15 

.Miss.   803,   13   So.   692;    Barker  v.  Ark.    73. 


2134  Real  Propeety.  [§  546 

most  merely  a  legal  title,  the  beneficial  interest  vesting 
immediately  in  the  grantee.*'^  In  the  case  of  a  judg- 
ment rendered  against  the  grantor  not  only  after  his 
conveyance,  but  also  after  his  acquisition  of  the  title,, 
the  judgment  creditor  can,  it  would  seem,  for  a  like 
reason,  have  no  lien  upon  the  property,  excej>t  as  he 
may,  in  some  states,  be  protected  as  a  bona  fide  pur- 
chaser for  value.^^ 

§  546.  Estoppel  by  representation.  In  connection 
with  the  law  of  land  there  is  frequent  occasion  for  the 
application  of  the  familiar  principle  that  one  who,  by 
his  words  or  actions,  represents  a  certain  state  of  facts 
to  be  true,  and  thereby  induces  another  to  act  to  his  detri- 
ment, is  precluded  from  thereafter  denying  the  exist- 
ence of  such  a  state  of  facts.  So  it  has  frequently 
been  decided  that  if  one,  having  title  to  land,  as  he 
knows  or  has  reason  to  know,  disclaims  any  rights 
therein,^^   or  fails   to   assert  his   rights,^^   and   thereby 

62.  Lamprey  v.  Pike,  28  Fed.  Schneider,  281  111.  557,  118  N.  E. 
30;  Brown  v.  Barker,  35  Okla.  41;  Webb  v.  Hardaway — (Ky.) — , 
498,  130  Pac.  155.  See  also  Wat-  121  S.  W.  669;  Blodgett  ▼.  Mc- 
kins  V.  Wassell,  15  Ark.  73.  Com-  Murtry,  34  Neb.  782,  52  N.  W. 
pare  Leslie  v.  Harrison  Nat.  706;  Mayer  v.  Ramsey,  46  Tex. 
Bank,   97   Kan.    22,   154   Pac.    209.  371. 

63.  In  Pennsylvania  a  judg-  65.  Bryan  v.  Ramirez,  8  Cal. 
ment  creditor  is  so  protected  as  461,  68  Am.  Dec.  340;  Baillarge 
against  a  mortgage  made  by  the  v.  Clark,  145  Cal.  589,  79  Pac. 
debtor  before  acquiring  title.  268;  Coram  v.  Palmer.  63  Fla. 
Calder  v.  Chapman,  52  Pa.  559,  116,  58  So.  721;  Loughran  v. 
91  Am.  Dec.  163;  Gallagher  v.  Gorman,  256  111.  46,  99  N.  E.  886; 
Stern,  250  Pa.  292,  95  At.  518.  Simpson  v.  Yocum,  172  Ky.  449, 
The  latter  case  is  criticized  in  189  S.  W.  439;  Hatch  v.  Kimball, 
an  editorial  note  in  29  Harv.  Law  16  Me.  146;  Brown  v.  Union 
Rev.  457  on  the  ground  that  the  Depot  St.  Ry.  &  Transfer  Co., 
judgment  creditor  was  chargeable  65  Minn.  508,  68  N.  W.  107; 
with  notice.  Pabst  v.  Berch,  126  Minn.  58,  147 

64.  Dickerson  v.  Colgrove,  100  N.  W.  714;  Guffey  v.  O'Reilly, 
U.  S.  578,  25  L.  Ed.  618;  Burle-  88  Mo.  418,  57  Am.  Rep.  424; 
son  V.  Mays,  189  Ala.  107,  66  So.  Thompson  v.  Sanborn,  11  N.  H. 
36;  Coogler  v.  Rogers,  25  Fla.  201,  35  Am.  Dec.  490;  Wendell  v. 
853,      7      So.     391;      Whalen     v.  Van  Rensselaer,  1  Johns.  Ch.  (N. 


§  546] 


Estoppel. 


2135 


causes  one,  excusably  ignorant  of  the  true  state  of  the 
title,  to  purchase  the  land  from  a  third  person,  he  can- 
not thereafter  assert  any  claim  to  the  land.  Like^vdse, 
the  true  owner  of  land  who  stands  by  and  sees  another, 
under  the  belief  that  he  has  the  unincumbered  title  to  the 
land,  make  expenditures  for  improvements  thereon, 
may  be  under  such  a  duty  to  inform  the  person  in  pos- 
session of  the  true  state  of  the  title  as  to  be  there- 
after estopped  from  asserting  any  rights  in  the  land."" 
The  mere  failure  to  assert  one's  title,  without  any 
active  misrepresentation  in  regard  thereto,  will  not 
ordinarily  have  the  effect  of  an  estoppel,  if  his  title 
appears  of  record,  since  one  purchasing  or  improving 
the  land  is  in  such  case  charged  with  notice  of  the 
true  state  of  the  title,*''^     And  the  result  appears  to  be 


Y.)  344;  Heckman  v.  Davis,  56 
Okla.  483,  155  Pac.  1170;  Gaddes 
V.  Pawtucket  Inst,  for  Savings, 
33  R.  I.  177,  Ann.  Cas.  1912B. 
407,  80  Atl.  415;  Marines  v. 
Goblet,  31  S.  C.  153,  17  Am.  St. 
Rep.  22;  Grigsby  v.  Verch,  34  S. 
D.   39,   146  N.  W.   1075. 

66.  Kirk  v.  Hamilton,  102  U. 
S.  68,  26  L.  Ed.  79;  Hendrix  v. 
Southern  Ry.  Co.,  130  Ala.  205,  80 
Am.  St.  Rep.  27,  30  So.  596; 
Gibson  v.  Herriott,  55  Ark.  85, 
29  Am.  St.  Rep..  17;  Beardsley 
V.  Clem,  137  Cal.  328,  70  Pac.  175; 
Holmes  v.  Brooks,  84  Conn.  512. 
80  Atl.  773;  Coram  v.  Palmer,  63 
Fla.  116,  58  So.  721;  Georgia  Pac. 
Ry.  Co.  V.  Strickland,  80  Ga. 
776,  12  Am.  St.  Rep.  232,  b  S.  E. 
27;  Crumley  v.  Laurens  Banking 
Co.,  141  Ga.  603,  81  3.  fi.  871; 
Hoi  comb  v.  Independent  School 
Dist,  67  Minn.  321,  ^^9  N.  W. 
1067;  Thomas  v.  Pull  is,  56  Mo. 
211;  Deilett  v.  Kemh!^,  r^  N.  J 
Eq.  58;  Marvin  v.  Tusch.  86  Ohio 
St.    49,   98   N.   E.    860;    ^rusha   v 


Board  of  Education  of  Gklahcraa 
City  41  Okla.  595,  139  Pac.  298, 
L  R.  A.  1916C,  233;  McDroom  v. 
Thompson,  25  Ore.  559,  42  Am. 
St.  Rep.  806,  37  Pac.  57;  7/arapol 
v.  Kountz,  14  S.  D.  334,  86  Am. 
St.  Rep.  765.  85  N.  W.  595; 
Danielson  v.  Gustafson,  33  S.  D. 
440,  146  N.  W.  562;  Clark  v. 
Kirby,  18  Utah,  258,  55  Pac.  372. 
67.  Wiser  v.  Lawler,  189  U.  S. 
260,  271;  Porter  v.  Wheeler,  105 
Ala.  451,  47  L.  Ed.  802;  Wo.its 
v  Moore,  89  Ark.  19,  115  S.  W. 
931;  Neal  v.  Gregory,  19  Fla.  356; 
Bell  v.  Nye,  255  111.  283,  99  N. 
E.  610;  Farm  Land  Mfg.  &  De- 
benture Co.  V.  Hopkins,  63  Kan. 
678,  66  Pac.  1015;  Mason  v. 
Philbrook,  69  Me.  57;  Oberheim 
V.  Reeside,  116  Md.  265,  81  Atl. 
590;  Gray  v.  Bartlett,  20  Pick. 
186;  Boston  &  A.  R.  R.  v.  Rear- 
don,  226  Mass.  286,  115  N.  E.  408; 
Staton  V.  Bryant,  55  Miss.  261: 
Blodgett  V.  Perry,  97  Mo.  203,  10 
Am.  St.  Rep.  307,  10  S.  W.  891: 
Clark  V.  Parsons,  69  N.  H.  147,  70 


2136  Real  Property.  [§  546 

the  same  when  the  true  owner  is  in  possession  of  the 
land.^^ 

An  estoppel  of  this  character,  since  it  is  based  on  a 
representation  that  one  has  not  title  to  land,  and  not 
that  he  has  title,  has  obviously  no  effect  upon  a  title 
afterwards  acquired  by  the  person  making  the  repre- 
sentation.^^ 

This  class  of  estoppel,  though  frequently  spoken 
if  as  ''equitable"  estoppel,  is  ordinarily  rocognized 
and  enforced  in  courts  of  law  as  well  as  in  equity.  But 
though  the  principles  governing  in  this  class  of  cases 
were  not  clearly  recognized  and  formulated  under  that 
name  until  well  into  tho  nineteenth  century,""  before 
this  there  existed  in  equity  a  doctrine  which  was  equiv- 
alent to  the  modern  doctrine  of  estoppel  by  representa- 
tion, to  the  effect  that  one  who  knowingly  makes  a 
false  representation  to  one  who  acts  on  it  is  bound  to 
make  that  representation  good;'^'  and  a  similar  princi- 
ple was  also  involved  in  the  equitable  rule  that  the 
fraudulent  failure  of  one  to  make  known  his  title  to  a 
person  about  to  purchase  the  land  from  another  would 
have  the  effect  of  changing  the  ordinary  rule  of  priori- 

Am.    St.    Rep.    157,    39    Atl.    898;  velopment  Co.,  52  Tex.  Civ.  App. 

Chambers    v.    Bessent,    17    N.    M.  205,    114    S.    W.    857.      So    it    is 

487,  134  Pac.  237;  Fisher  v.  Moss-  said  that  the  person  asserting  the 

man,    11    Ohio    St.    42;    Knouff   v.  estoppel  must  have  been  without 

Thompson,    16    Pa.    357;    Sullivan  a  convenient  means  of  ascertain- 

V.   Moore,   84    S.   C.   426,   65   S.   E.  ing    the    truth.      Crary    v.    Dye, 

108;  Crabtree  v.  Winchester  Bank,  208  U.  S.  515,  L.  Ed.;   Stonecipher 

108    Tenn.    483,     67    S.    W.    797;  v.    Kear,    131    Ga.    688,    63    S.    E. 

Bigelow    v.    Tapliff,    25    Vt.    273;  215;     State    v.    Mutual    Life    Ins. 

Kingman  v.  Graham,  51  Wis.  232,  Co.,— (Ind.)— ,  93  N.  E.  213. 

8    N.    W.    181.      Contra,    Farr    v.  69.     Gluckauf  v.   Reed,   22   Cal. 

Semmler,    24    S.    D.    290,    123    N.  468;   Davidson  v.  Dwyer,  62  Iowa, 

W.   835.  332,   17  N.    W.   575;    Donaldson  v. 

68.     Maeomter    v.    Kinney,    114  Hibner,    55   Mo.    492. 

Minn.    146,    128    N.   W.    1001,    130  70.     Pickard  v.  Sears,  6  Adol.  & 

N.    W.    851;    Bliss   v.    Waterbury,  E.  469    (A.  D.  1837). 

27  S.  D.  429,  131  N.  W.  731   (sevi-  71.     Evans    v.    Bicknell,    6    Ves. 

ble);    Pierce    v.    Texas    Rice    De-  174;   Bigelow,  Estoppel,  603. 


§  546]  Estoppel.  213:7 

ties,   and  of  postponing  his  claim   to   that  of  the   jnir- 
chaser."- 

There  has  been  considerable  difference  of  ojjinion 
as  to  whether  a  misrepresentation,  whether  by  condnct 
.  or  b}^  express  statement,  must  be  fraudulent  in  order 
to  give  rise  to  an  estoppel  of  this  character.  I'he  de- 
cided weight  of  authority  is  to  the  effect  that  it  need 
not  be  such;'^^  but  apart  from  the  question  of  the 
existence  of  such  a  requirement  in  other  case.'=!,  it  is 
by  some  authorities  asserted  that,  in  order  that  one 
may,  by  reason  of  misrepresentations,  be  estopped  to 
assert  his  title  to  land,  he  must  have  been  guJlty  of 
fraud,  on  the  theory  that  the  application  of  the  doctrine 
of  estoppel  by  representation  in  such  a  ease  involves 
in  effect  a  transfer  of  land,  and  that  is,  by  the  Stat- 
ute of  Frauds,  required  to  be  in  writing.'^''  More- 
over, while,  as  a  general  rule,  an  estoppel  by  represen- 
tation is  as  available  at  law  as  in  equity,  it  is,  by  the 
decisions  of  some  states,  not  available  at  law  when  the 
title  to  land  is  involved,  on  the  ground  that  at  law  the 
Statute  of  Frauds  must  control,  and  that  in  equity  only 
can  the  case  be  regarded  as  taken  out  of  the  statute 
by  the  fraud,  actual  or  constructive,  involved  in  tlie  mis- 
representation."^^    The  view  is,  however,  taken  in  most 

72.  2  Pomeroy,  Eq.  Jur.  §§  310;  2  Pomeroy,  Eq.  Jur.  §  307. 
686,    731;     Ewart,    Estoppel,    257.  Contra,    McDowell    v.    McDowell, 

73.  Bigelow,  Estoppel,  685  note.  HI  Iowa,  286,  31  L.  R.  A.  (N.  S.) 
2  Pomeroy,  Eq.  Jur.  §§  805,  806,  176,  133  Am.  St.  Rep.  170,  119 
11    Am.    &    Eng.    Enc.    Law     (2d  N.    W.    702. 

Ed.)    431;    Ewart,  Estoppel,  88  ct  75.     Stodenmeyer    v.    Hart,    155 

seg.      But    fraud    is    necessary    lo  Ala.   243,   46   So.   488;    Mattoon  v. 

the  existence  of  a  misrepresenta-  Elliott,  259  111.  72,  102  N.  E.  251; 

tion,    on    which    to    base    the    es-  Hayes  v.  Livington,  34  Mich.  384, 

toppel,    in    the    case    of    a    mere  22    Am.    Rep.    533;     Johnson    v. 

failure     to     assert     one's     rights.  Hogan,  158  Mich.  635,  123   N.   W. 

Ewart,     Estoppel     92.       Editorial  891;  Petit  v.  Flint  &  P.  M.  R.  Co.. 

note,  24  Harv.  Law  Rev.  494.  ng    Mich.    492,    75    Am.    St.    Rep. 

74.  Trenton  Banking  Co.  v.  417,  78  N.  W.  554;  Suttle  v. 
Duncan,  86  N.  Y.  221;  Huyck  v.  Richmond,  F.  &  P.  R.  Co.,  76  Va. 
Bailey,    100   Mich.   223,    58   N.   W.  284. 

1002;     May    v.    Hanks.    62    N.    C. 


2138  Real  Propekty.  [§  546 

jurisdictions,'^''  that  such  an  estoppel  may  be  asserted 
at  law  as  well  as  in  equity.  So  far  as  concerns  the  ap- 
l)licability  of  the  Statute  of  Frauds  in  such  a  ease,  it 
may  be  remarked  that  though,  in  the  ordinary  case, 
the  practical  result  of  the  estoppel  is  equivalent  to  that 
of  a  transfer  of  the  land,  it  does  not  actually  involve 
a  transfer,  and  even  were  it  a  transfer,  it  would  be  a 
transfer  by  operation  of  law,  and  consequently  not  with- 
in the  statute. 

In  equity  the  person  in  favor  of  whom  the  owner 
is  estopped  to  claim  the  land  is  entitled  to  a  convey- 
ance of  the  land  by  the  owner,  that  is,  the  owner  may  be 
compelled  to  make  good  his  representations;'^'^  this,  as 
before  stated,  being  a  recognized  equitable  doctrine 
before  the  legal  development  of  the  law  of  estoppel 
under  that  name.'^^  In  determining,  therefore,  the 
rights  of  the  person  to  assert  the  estoppel  as  against 
persons  other  than  the  person  who  was  originally 
guilty  of  the  misrepresentation,  the  former  should, 
it  seems,  be  regarded  as  standing  in  the  position  of  any 
other  person  having  an  equity  to  a  conveyance.  Con- 
sequently, the  estoppel  should  be  enforceable  as  against 
any  subsequent  owner  of  the  land,  as  would  any  other 
equity,  until  the  land  passes  to  a  bona  fide  purchaser 
for  value. '^'^  This  view  has  usually  been  applied,^'^  though 

76.  Kirk  v.  Hamilton,  102  U.  v.  Slaveus,  218  Mo.  598,  117  S 
S.    68,    26    L.    Ed.    79;    Davis    v.       W.    1104. 

Davis,   26   Cal.   23;    Levy   v.   Cox,  78.     Ante,  note  71. 

22   Fla.    546,   Bigelow  v.   Foss,   59  79.     See    Ewart,    Estoppel,    196. 

Me.    164;     Macomber    v.    Kinney,  on  which  the  view  here  presented 

114    Minn,    146,    128    N.    W.    1001,  is   based. 

130  N.  W.  851;    Brown  v.  Bowen.  80.     Ions  v.  Harbison,   112   Cal. 

30   N.   Y.    519;    Beaupland  v.   Mc-  260,     44     Pac.     572;     Ramboz     v. 

Keen,    28    Pa.    St.    124;     Sh-'  Stowell,     103     Cal.     588,     37    Pac. 

Beebe,  35  Vt.  204;  Bigelow,  Estop-  519;    Thornton    v.    Ferguson,    133 

pel    (6th  Ed.)    781.  Ga.    825,    134    Am.    St.    Rep.    226, 

77.  Citizens'  Bank  of  Louisi-  67  S.  E.  97;  Rutz  v.  Kehn,  143 
ana  v.  First  Nat.  Bank  of  New  m.  558,  29  N.  E.  553;  Maxon  r. 
Orleans,  L.  R.  6  H.  L.  360;  Beatty  Lane,  124  Ind.  592,  24  N.  E. 
V  Sweeney,  26  Mich.  217;  Favill  683;  Webb  v.  Hardaway, — Ky. 
v.  Roberts.  50  N.  Y.  222;  Hubbard  L.   Rep.—,  121   S.  W.   669;    Brian 


<^  546]  Estoppel.  2139 

frequently  tlie  subject  has  been  confused  by  uiider- 
taking  to  determine  whether  the  subsequent  owner  of 
the  land  is  a  ''privy"  of  the  person  originally  estopped, 
a  question  which,  by  reason  of  the  ambiguity  of  the 
terms   "privy"   and   ''privity"   is   difficult   of   solution. 

An  important  application  of  the  principle  of  estop- 
pel by  representation  is  seen  in  the  decisions  by  which 
one  who  allows  the  record  title  of  land  belonging  to 
him  to  stand  in  the  name  of  another,  who  is  m  pos- 
session or  apparent  possession,  is  precluded  from  as- 
serting his  ownership  as  against  creditors  of  the 
record  owner  who  gave  credit  on  the  assumption .  that 
the  record  showed  the  true  state  of  the  title. ^"''  These 
decisions  are,  to  a  great  extent,  cases  in  which  the 
record  title  being  in  the  husband,  the  wife  was  held  to 
be  estopped  to  assert  her  beneficial  interest  as  against 
the  husband's  creditors,^^"'  but  the  same  view  has  been  ap- 
plied when  the  relation  of  husband  and  wife  was  non 
existent. 

Another  important  application,,  and  at  times  ex- 
tension, of  the  doctrine  of  equitable  estoppel,  is  to  be 
found  in  the  decisions,  not  inconsiderable  in  number, 
that  if  an  individual,  by  reason  of  a  mistaken  assump- 
tion as  to  the  extent  or  limits  of  a  street,  encroaches 
upon  the  street  by  the  erection  of  buildings  or  the 
construction  of  other  improvements,  and  the  munic- 
ipality makes  no  objection  to  such  action  on  his  part, 
the  municipality  may  be  estopped  subsecpiently  to  assert 
the  rights  of  the  public  as  against  sucli  encroachment. **' 

V.    Bonvillain,    52    La.    Ann.    1794,  Rif^hts    and    Remedies,    §    206    ct 

28    So.   261;    Stinchfield   v.    Emer-  seq;  Editorial  note,  28  Yale  Law 

son,    52    Me.    465,    8.'',    Am.    Dec.  Journ.  f)85. 

524;    Southard   v.    Sutton,    68    Me.  80b.     The   cases  in  this  regard 

575;     Thistle    v.    Buford,    50    Mo.  are    collected    in    A.    &    E.    Ann. 

278;     Smith     &     Richer     v.     Hill  Cas.  1914C,  1066.  note  to  Goldberg 

Bros.,  17  N.  M.  415,  134  Pac.  243;  v.   Parker. 

Hodges    V.    Eddy,    41   Vt.    485,    98  81.     See     3     Dillon,     Municipal 

Am.   Dec.    612.  Corporations    (5th    Ed.)    §§    1191, 

80a.     The  subject    is    excellent-  1194. 
ly   discussed    in   Glenn,   Creditors 


2140 


Real  Property. 


[§  547 


The  chief  difficulty  in  these  cases  appears  to  be  in  the 
fact  that  ordinarily  the  abutting  owner  is  in  a  position  to 
ascertain  the  existence  and  limits  of  the  street,  and  i& 
consequently  hardly  justified  in  asserting  that  he  was 
misled  by  the  failure  of  the  municipality  to  object  to 
the   encroachments.^- 


§  547.  Improvements  by  oral  grantee.  The  cases 
are  generally  to  the  effect  that  an  oral  gift  of  land, 
if  followed  by  the  making  of  substantial  improvements 
by  the  donee  on  the  strength  thereof,  will  be  recog- 
nized and  enforced  by  a  court  of  equity.^'  In  some  of 
these  cases  it  appears  that  the  court  construed  the  lan- 


82.  See  notes  in  8  Columbia 
Law  Rev.  at  p.  273,  21  Id.  at  p. 
292,  30   Id.   769. 

83.  Neale  v.  Neale,  9  Wall.  (U. 
S.)  1,  19  L.  Ed.  590;  Burris  v. 
J.anders,  114  Cal.  310,  46  Pac. 
162;  Kinsell  v.  Thomas,  18  Cal. 
App.  683,  124  Pac.  220;  Hunt  v. 
Hayt,  10  Colo.  278,  15  Pac.  410; 
Howell  V.  Ellsberry,  79  Ga.  475, 
5  S.  E.  96;  Garbutt  v.  Mayo,  128 
Ga.  269,  13  L.  R.  A.  (N.  S.)  58. 
57  S.  E.  495;  Drum  v.  Stevens, 
94  Ind.  181  (but  see  Winslow  v. 
Winslow,  52  Ind.  8) ;  Bevington  v. 
Bevington,  133  Iowa,  351,  9  L.  R. 
A.  (N.  S.)  508.  12  Ann.  Cas. 
490.  110  N.  W.  840;  Dyer  v.  School 
Dist.  No.  Ill  of  Sedgwick  County, 
76  Kan.  889,  92  Pac.  1122;  Bige- 
low  V.  Bigelow,  93  Me.  439,  45 
Atl.  513,  95  Me.,  17,  49  Atl.  49; 
Polk  v.  Clark,  92  Md.  372,  48 
Atl.  67;  Whitaker  v.  McDaniel, 
113  Md  388,  78  Atl.  1;  Trebesch 
V.  Trebesch,  130  Minn.  368,  153 
N.  W.  754;  Maas  v.  Anchor  Fire 
Ins.  Co.  of  Cincinnati,  148  Mich. 
432,  111  N.  W.  1044;  Dozier  v. 
Matson,    94    Mo.    328,    4    Am.    St. 


Rep.  388,  7  S.  W.  268;  Story  v. 
Black,  5  Mont.  26,  51  Am.  Rep. 
37,  1  Pac.  1;  Merriman  v.  Merrl- 
man,  75  Neb.  222,  166  N.  W.  174; 
Seavey  v.  Drake,  62  N.  H.  393; 
Freeman  v.  Freeman,  43  N.  Y. 
34,  3  Am.  Rep.  657;  Messiah 
Home  V.  Rogers,  212  N.  Y.  315, 
106  N.  E.  59;  Thayer  v  .Thayer, 
69  Ore.  138,  138  Pac.  478; 
Syler's  Lessee  v.  Eckert,  1  Binn. 
(Pa.)  378;  Burns  v.  Suther- 
land, 7  Pa.  103;  Cook  v.  Cook,  24 
S.  D.  223,  123  N.  W.  693;  Wool- 
ridge  V.  Hancock,  70  Tex.  18,  6 
S.  W.  818;  Cooke  v.  Young,  2 
Utah,  254;  Burkholder  v.  Ludlan, 
30  Gratt.  (Va.)  255,  32  Am.  R.jp. 
668;  Halsey  v.  Peters,  79  Va.  60; 
Coleman  v.  Larson,  49  Wash.  321, 
95  Pac.  262;  Crim  v.  England,  46 
W.  Va.  480,  76  Am.  St.  Rep.  826. 
33  S.  E  310;  Dillwyn  v.  Llewellyn, 
4  De  G.  F.  &  J.  517  (semble); 
See  1  White  &  Tudor's  Ldg.  Cas. 
in  Eq.  (4th  Am.  Ed.)  p.  1047; 
Pomeroy,  Equitable  Remedies,  § 
828;  Editorial  notes,  15  Harv. 
Rev.  at  p.  659;  13  Columbia  Law 
Rev.    at    p.    151;     26    Yale    Law 


§  547]  Estoppel.  2141 

guage  used  by  the  donor  as  in  effect  an  offer  to  convey 
the  land  to  the  so-called  donee  on  condition  that  he 
would  make  improvements,  which  offer  was  a.^-cepted 
by  the  making  of  improvements,  giving  rise  to  a  con- 
tract to  convey  the  land,^^  but  more  usually  the  de- 
cision is  based  upon  the  theory  that,  after  the  owner 
of  land  has  induced  another  to  make  substantial  ex- 
penditures thereon  by  purporting  to  give  him  the  land, 
a  withdrawal  of  such  gift  would,  although  no  contract 
is  created,  in  effect  operate  as  a  fraud  upon  the  donee, 
which  equity  will  interfere  to  prevent  by  requiring  the 
execution  of  a  conveyance  in  accordance  with  the  in 
tended  gift.  In  applying  this  doctrine  the  courts  per- 
haps ordinarily  refer  to  it  as  a  case  of  specific  per- 
formance, stating  that  the  making  of  improvements  con- 
stitutes a  jDart  performance  sufficient  to  take  the  trans- 
action out  of  the  Statute  of  Frauds.  The  expressions 
''part  performance"  and  "specific  performance,  how- 
ever, appear  to  be  particularly  inappropriate  as  applied 
to  an  attempted  conveyance,  as  distinguished  from  a 
contract,  and  the  doctrine  may,  it  is  conceived,  be  more 
satisfactorily  regarded  as  involving  an  application,  or 
perhaps  extension,  of  the  principle  of  estoppel  tn  pais. 

Journ.    592;    article   by    Professor  3    Blackf.    (Ind.)    446;    Ridley    v. 

Roscoe    Pound,    13    Illinois    Law  McNain,  2  Humph.  (Tenn.)  174. 
Rev.   at  p.   672.  84.     Gwynn     v.     McCauley,     32 

In       occasional      comparatively  Ark.    97;    Gaines   v.    Kendall,   176 

early    decisions    the    oral     donee  111.    228,   52    L.   R.    A.   277,   58   N. 

was   restricted    to   a    right   to    re-  E.    598;     Harlan    v.    Harlan,    273 

cover   the   value   of   his    improve-  111.    155,    112    N.    E.    452;    Haines 

ments.     Evans  v.  Battle,   19   Ala.  v.   Haines,   6  Md.   435;    Seavey   v. 

398;    Runker  v.  Abele,  8  B.  Mon.  Drake,    62    N.    H.    393;    Young    v. 

(Ky.)     566.       See     also    Tolleson  Overbaugh,   145   N.   Y.    158,   39   N 

V    Blackstock,  95  Ala.  510,  11  So.  E.  712;   Greenwood  v.  School  Dis- 

284.      Relief    to    the    oral    donee  trict,  126  Mich.  81,  85  N.  W.  241. 
was  denied  In  Adamson  v.  Lamb 


2  R.  P.— 60 


CHAPTER  XXVII. 

ESCHEAT  AND  FORFEITURE. 

§  548.     Escheat. 
549.     Forfeiture. 

§  548.  Escheat.  At  common  law,  as  before  stated, 
an  escheat  of  land  occurred  in  favor  of  the  feudal  lord 
in  case  the  tenure  terminated  by  reason  of  the  failure 
of  inheritable  blood,  such  failure  arising  from  the 
corruption  of  the  blood  of  the  tenant  by  attainder  of 
felony,  as  well  as  from  the  death  of  the  tenant  ^;ith- 
out  any  ascertainable  heir.^  In  this  country,  in  those 
states  in  which  tenure  is  to  be  regarded  as  nonexistent,^ 
the  feudal  conception  of  escheat  cannot  obtain,  though 
even  there  the  right  of  the  state  to  land  the  owner  of 
which  dies  intestate  without  heirs  would  no  doubt  be 
sustained  as  an  attribute  of  sovereignty.  Any  question 
upon  the  subject,  however,  is  avoided  in  most,  if  not 
all,  the  states  by  statutory  provisions  that,  upon  the 
failure  of  other  heirs,  the  land  shall  pass  to  the 
state  or  to  some  state  agency.''  This  right  of  the  state 
to  land  in  default  of  heirs  is  ordinarily  spoken  of  as 
''escheat."^ 

An  ''escheat"  of  this  character  may  occur  in  states 
where  aliens  are  forbidden  to  hold  lands,  as  a  result  of 
the  absence  of  all  heirs  other  than  aliens,  and  l- kewi.se 
owing  to  the  inability  of  one,  otherwise  entitled  to  in- 
herit, to   trace  his   descent   except   through   an   alien.*" 

1.  8     Blackst.     Comm.     244     et  laws  of  the  state"  within  the  in- 
seq;  ante,    §    9.  heritance    tax   law,    see   29    Harv. 

2.  Ante,   §   13.  Law  Rev.  455,  discussing  and  ap- 

3.  1  Stimson's  Am.  St.  Law,  §§  proving  People  v.  Richardson,  111. 
400,    1151-1154,    3125.  103    N.    E.    1033,    in   favor   of  the 

4.  As  to  whether  a  county  ac-  liability    to    the    state, 
quiring     land,     under     the     state  4a.     Post,    §    595. 
statute,    took    "by    the    intestate 


(2142) 


§  549]  Escheat  and  Forfeiture.  2143 

But  the  term  *' escheat"  is  not,  it  seems  applicable  to 
the  forcible  acquisition  by  the  state  of  land  which  an 
alien  has,  in  violation  of  law,  undertaken  to  acquire  bj^ 
purchase,  though  the  term  is  frequently  so  used,  this 
being  in  the  nature  of  the  enforcement  of  a  forfeiture 
by  the  state,  rather  than  an  escheat.^ 

§  549.     Forfeiture To   state.    At   common   law, 

upon  his  attainder  of  high  treason,  one  forfeited  to 
the  crown  all  his  freehold  estates,  and,  in  case  of  petit 
treason  and  felony,  his  freehold  estates  for  life,  and  his 
chattel  interests  absolutely.*'  In  this  country  the  effect 
of  a  conviction  of  crime  is  rarely  to  forfeit  all  the  land 
of  the  wrongdoer,  the  statutes  of  most  states  providing 
explicitly  that  no  conviction  of  crime  shall  work  for- 
feiture of  estate  or  corruption  of  blood,  though  in  two 
or  three  there  may,  it  seems,  be  a  forfeiture  during  the 
life  of  the  offender.'^ 

If  an  alien  undertakes  to  acquire  land  in  violation 
of  the  law  of  the  particular  state,  he  may,  unle^^s  pro- 
tected by  the  terms  of  a  treaty  with  his  government,  be 
deprived  of  such  land,  and  a  forfeiture  to  the  state 
be  compelled.^ 

During  the  American  Revolution,  many  of  the  co- 
lonial governments  confiscated  the  lands  of  persons  sup- 
porting the  royal  cause,^  and,  during  the  Civil  War, 
acts  confiscating  the  property  of  persons  aiding  the 
Confederate  cause  were  passed  by  congress,  the  confis- 
cation, however,  in  the  case  of  land,  being  limited  to 
the  term  of  the  offender's  natural  life,^^  The  confis- 
cation of  enemies'  property  is,  at  the  present  day,  not 
generally  approved  by  writers  on  international  law.^^ 

5.  See    2    Blackst.    Coram.    274,       can   Revolution,    75    et   seq. 

293;   2  Kent's  Comm.  61;   Read  v.  10.     Jenkins  v.   Collard,   145  U. 

Read,    5    Call    (Va.)    207.  S.    546,    36    L.    Ed.    812. 

6.  4  Blackst.  Comm,  381-383.  11.     Lawrence's     Wheaton,     In- 

7.  1    Stimson's    Am.    St.    Law,  ternat.    Law,    596    et    seq.      Law- 
§§   143,   1162.  rence,  Internat.  Law,  §  178;   Tay- 

8.  Post,  §  597.  lor,   Internat.  Law,   §   540. 

9.  Sabine,  Loyalists  of  Ameri- 


2144  Real  Peopeety.  [§  549 

Occasionally  the  statute,  in  restricting  the  power  ot 
a  corporation  to  acquire  land,  provides,  expressly  or 
impliedly,  that  land  acquired  by  the  corporation  in 
violation  of  law  shall  be  forfeited  to  the  state. ^^  In  the 
absence  of  such  a  provision  for  forfeiture,  though  the 
state  may  annul  the  transfer  or  dissolve  the  corpora- 
tion, it  does  not  have  any  right  to  the  land  which  the 
corporation  thus  wrongfully  acquired. ^-^ 

Land  used  for  purposes  which  violate  the  internal 
revenue  laws  in  certain  ways  become  subject  to  for- 
feiture, by  express  provision  of  statute,  to  the  United 
States  government.^* 

At  common  law,  the  proceedings  on  the  part  of  the 
state  to  enforce  a  forfeiture  as  well  as  an  escheat  was 
by  ''office  found"  or  "inquest  of  office,"  this  being  a 
proceeding,  by  the  aid  of  a  jury,  which  was  made  use 
of  in  any  cases  in  which  the  crown  asserted  a  claim  to 
lands  or  goods. ^^  There  is,  in  some  states,  a  statutory 
proceeding  for  the  enforcement  of  such  rights,  but  an 
inquest  of  office  as  at  common  law,  or,  it  seems,  an 
action  of  ejectment,  would  be  sufficient  to  try  the  rights 
of  the  state  to  the  land  in  any  such  case. 

To  individual.    A  tenant  of  a  particular  estate 

usually  holds  it  subject  to  certain  implied  conditions. 
At  common  law,  a  life  tenant  held  the  land  subject  to 
an  implied  condition  that  he  should  not  make  a  feoff- 
ment thereof  in  fee  simple,  since  this  divested  the 
whole  fee-simple  title,  and  by  so  doing  he  forfeited  his 

12.  See  Leazure  v.  Hillegas,  7  v.  Licking  Valley  Land  &  Min- 
Serg.  &  R.  (Pa.)  313;  Com.  v.  ing  Co.,  15  Ky.  L.  Rep.  211, 
New  York,  L.  E.  &  W.  R.  Co.,  132  22  S.  W.  881;  Com.  v.  New  York, 
Pa.  St.  591,  7  L.  R.  A.  634,  19  L.  E.  &  W.  R.  Co.,  132  Pa.  St. 
Atl.  291,  139  Pa.  St.  457,  21  Atl.  591,  7  L.  R.  A.  634,  19  Atl.  291, 
528;  Louisville  &  N.  R.  Co.  v.  139  Pa.  St.  457,  21  Atl.  528; 
Com.,  151  Ky.  325,  151  S.  W.  934,  Fayette  Land  Co.  v.  Louisville  & 
151  Ky.  774,  152  S.  W.  976.  N.   R.    Co.,    93   Va.    274,   24    S.    E. 

13.  Union    Nat.    Bank   v.    Mat-  1016. 

thews,    98    U.    S.    621,    25    L.    Ed.  14.     Rev.   St.   U.   S.    §   3400. 

188;   National  Bank  of  Commerce  15.    3   Blackst.   Comm.   358. 


§  549]  Escheat  and  Foefeiture.  2145 

estate.  This  ground  of  forfeiture  is  now  obsolete, 
since  a  modern  conveyance  passes  onl}-  such  interest 
as  the  grantor  has/*^  A  life  tenant  may,  however,  at 
the  present  day,  forfeit  his  interest  by  the  commission 
of  acts  of  waste,  the  statute  frequently  containing  a 
provision  to  this  effect.^"  A  tenant  under  a  lease  may 
also  forfeit  his  tenancy  by  his  disclaimer  of  his  land- 
lord's title,  and,  in  some  states,  by  the  use  of  the 
premises  for  an  illegal  purpose.^* 

The  subject  of  the  forfeiture  of  an  estate  in  land 
for  breach  of  an  express  condition  subsequent  lias  been 
before  considered. ^^ 

16.  Ante,  §  33.  18.     2    Tiffany,   Landrd   &   Ten. 

17.  1   Stimson's   Am.    St.   Law,      §§    192,   193.     See  ante,   §   77. 
§    1332.  19.     Ante,  §§  82-88. 


CHAPTER  XXVIII. 

TRANSFER  UNDER  JUDICIAL  PROCESS  OR  DECREE. 

§  550.  Sales  and  transfers  under  execution. 

551.  Sales  in  equity  at  the  instance  of  creditors. 

552.  Sales  of  decedent's  lands. 

553.  Sales  of  lands  of  infants  and  insane  persons. 

554.  Sales  and  transfers  for  purpose  of  partition. 

555.  Decrees  transferring  title. 
&b6.  Adjudications   of  bankruptcy. 

§  550.  Sales  and  transfers  under  execution.  The 
land  of  a  debtor  was  first  made  subject  to  the  claims 
of  creditors  by  an  early  statute/  which  provided  that 
one  who  had  recovered  a  judgment  might  elect  to  have 
the  sheriff  deliver  to  him  the  chattels  of  the  dentor  and 
one-half  his  land,  the  writ  under  which  this  was  done 
being  termed  a  "writ  of  elegit/'  because  it  recited  that 
the  creditor  had  elected  (elegit)  to  pursue  that  remedy. 
Formerly  the  creditor  had  merely  the  right  to  retain 
the  land  taken  under  this  writ  until  the  rejits  and 
profits  sufficed  to  pay  the  judgment,  he  being  knowm  as 
a  tenant  by  elegit;  but  now,  by  statute  in  England, 
the  creditor  may  not  only  take  all  the  debtor's  land 
under  the  writ,  but  he  may  obtain  an  order  for  the  sale 
of  the  land,  the  proceeds  being  distributed  ara')ng  all 
the  creditors.^ 

The  writ  of  elegit  has  been  made  use  of  in  but  few- 
states,  and  is  at  the  present  daj-,  it  seems,  obsolete  in 
every  state  but  Delaware.^  In  most  of  the  states  the 
same  method  is  authorized  for  the  realization  of  debts 
from  the  land  of  the  judgment  debtor  as  from  his  chat- 
tels, that  is,  a  seizure  and  sale  by  the  sheriff,  and  ap- 

1.  13  Edw.   I   c.   18    (St.  West-       Ed.)    §  370. 

minster  II.).  3.     Freeman,     Executions      (3d 

2.  WiUiams,   Real   Prop.    (21st      Ed.)    271. 

(2146) 


§  550]  Judicial  Peocess  or  Decree.  2147 

plication  of  the  proceeds  to  the  payment  of  the  .judg- 
ment. In  the  New  England  states,  however,  the  satis- 
faction of  a  judgment  out  of  the  debtor's  land  is  usually 
obtained,  not  by  a  sale  of  the  land,  but  by  a  delivery  of 
the  land,  or  a  part  thereof,  at  a  value  fixed  by  ap- 
praisers, to  the  judgment  creditor,  this  being  known 
as  a  levy  ''by  extent,"  and  the  land  being  said  to  be 
''extended."  The  statutory  provisions  as  to  the  method 
of  making  the  extent  are  full  and  precise,  and  the}''  must 
be  strictly  followed.  A  certain  period,  usually  six 
months  or  a  year,  is  allowed  to  the  debtor  in  which  he 
may  pay  the  judgment  and  recover  the  extended  lands, 
but,  if  this  is  not  done,  the  creditor  acquires  the  whole 
estate  and  interest  of  the  debtor  absolutely.^  The  satis- 
faction of  a  pecuniary  judgment,  whether  by  a  sale 
under  the  writ  or  an  extent,  is  known  as  an  "execution" 
of  the  judgment. 

As  a  general  rule,  all  legal  interests  in  land  are 
subject  to  sale  under  execution.^  But  a  bare  legal  title, 
that  is,  a  legal  title  not  associated  with  any  beneficial 
interest  whatsoever,  is  not  so  subject.*'  The  interest  of 
a  tenant  at  will  is  not  so  subject,'''  since  he  has  no 
interest  capable  of  transfer.*  Whether  the  possibility 
of  an  estate  created  by  the  limitation  of  an  estate 
subject  to  a  condition  precedent,  such  as  a  contingent 
remainder  or  an  executory  devise,  is  subject  to  sale 
under  execution  would  seem  ordinarily  to  depend  on 
whether  it  is  an  interest  which  is  capable  of  transfer,^ 

4.  3     Freeman,     Executions,     §      McCann,  24  How.    (U.  S.)    o98,  16 
372     et    seq.;    2     Dembitz,    Land      L.  Ed.  714. 

Titles,  §  173.  7.     Colvin     v.    Baker,    2    Barb. 

5.  2     Freeman,    Executions,     §  (N.    Y.)    206;    Bigelow    v.    Finch, 
172.  11  Barb.    (N.  Y.)    498;    Waggoner 

6.  Baker    v.     Copenbarger,     15  v.  Speck,  3  Ohio,  292. 
in.    103,    58    Am.    Dec.    600;    Mor-  8.     Ante,  §  62(d). 

rison     v.     Herrington,     120     Mo.  9.     So   it   would   ordinarily  not 

665,    25    S.    W.    568;     Mallory    v.  be    so    liable    if    in    favor    of    un- 

Clark,    9    Abb.    Pr.    (N.    Y.)    358;  certain    persons.      Taylor   v.    Tay- 

Bostick   V.   Keizer,  4   J.  J.  Marsh.  lor,    118    Iowa,   407,    92    N.    W.   71 

597,   20   Am.   Dec.   237;    Smith   v.  while    it    might    be    liable    if    in 


2148  Real  Propeety.  [§  550 

provided  the  langauge  of  the  statute  authorizing  execu- 
tion sales  is  sufficiently  broad  to  apply  to  such  a 
case.^" 

At  common  law  there  was  no  method  by  which 
equitable  interests  could  be  reached  by  execution,  but, 
by  the  Statute  of  Frauds/^  it  was  enacted  that  the 
execution  might  be  levied  on  lands  of  which  saiy  other 
person  or  persons  were  seised  or  possessed  of  in  trust 
for  the  execution  defendant.  This  provision  has  been 
adojDted  or  re-enacted  in  a  number  of  the  states,  but  it 
has  usually  been  construed  as  applicable  only  in  cases 
in  which  the  execution  defendant  has,  under  an  express 
declaration  of  trust,  the  exclusive  enjoyment  of  a  bene- 
ficial interest  in  property,  the  legal  title  to  wliich  is  in 
another,  and  neither  it  not  its  American  counterparts 
have  had  the  effect  of  making  all  equitable  interests 
subject  to  execution.  In  some  states,  however,  more 
liberal  statutes  have  been  adopted,  subjecting  equitable 
interests  generally  to  execution,  while  in  others  the 
common-law  rule  which  prevailed  previous  to  the  Stat- 
ute of  Frauds  still  controls. ^^  Equitable  interests  which 
cannot  be  sold  under-  execution  may  usually  be  reached 
by  a  proceeding  in  equity,  known  as  a  "creditor's  bill," 
or  ''creditors'  suit. "^^ 

A  sale  by  a  sheriff  under  a  writ  of  execution  is  by 
force  of  a  statutory  power,^*  and  is  effective,  if  legally 

favor    of    a    certain    person,    the  474. 

execution  defendant.  De  Haas  v.  10.  In  New  York  it  is  said 
Bunn,  2  Pa.  335,  44  Am.  Dec.  that  a  contingent  remainder  is 
201  (executory  devise) ;  White  v.  not  within  the  terms  of  the  exe- 
McPheeters,  75  Mo.  286;  In  re  cution  statute.  Jackson  v.  Mid- 
Packer's  Estate,  246  Pa.  116,  92  dleton.  52  Barb.  (N.  Y.)  9; 
Atl.  70   isemhle).  Sheridan    v.    House,    4    Abb.    Dec. 

Occasionally  however  it  appears  218. 

to  be  assumed  that  no  contingent  11.     29  Car.  II.  c.  3,  §  10. 

remainder  is  liable  to  sale  under  12.     2  Freeman,   Executions,   §§ 

execution.      Watson    v.    Dodd,    68  187,    189;     11    Am.    &    Eng.    Bnc. 

N.  C.  528;    Howard  v.  Peavy,  128  Law   (2d  Ed.)    632. 

111.  430,   15  Am.   St.   Rep.   120,   21  13.     3    Freeman,    Executions,    § 

N.   E.    503;    Hill   v.    Hill,   264   lU.  424  et  seq.;  5  Enc.  PL  &  Pr.  393. 

219,  106  N.  E.  262;   Roundtree  v.  See  post,  §  551. 

Roundtree,   26   S.  C.  450,   2   S.   E.  14.     See  ante,  §   312. 


§  550]  Judicial  Process  ok  Decree.  2149 

made,  and  followed  by  a  conveyance  to  the  purchaser, 
to  divest  the  title  of  the  judgment  debtor,  and  to  vest 
it  in  the  vendee.  In  order  that  the  sale  may  have  this 
effect,  it  must  be  made  under  a  judgincnt  rendered  by  a 
court  having  jurisdiction  of  the  subj'J-ct- matter  and  of 
the  parties.^^  If  the  judgment  is  valid,  an  innocent  pur- 
chaser at  the  sale  is  not  usually  affected  by  irregulari- 
ties in  the  j^roceedings  leading  up  to  the  sale,  though, 
if  the  judgment  creditor  is  the  purchaser,  the  rule  is 
different,  and  he  is  regarded  as  chargeable  with  notice 
of  any  irregularities.^^ 

The  statutes  of  a  number  of  states  give  the  judg-ment 
debtor  a  certain  period  after  the  execution  sale  within 
which  he  may  redeem  therefrom,  hi  the  absence  of 
statute,  there  is  no  right  of  redemption.^" 

The  sheriff  is  required,  by  the  statutes  of  most,  if 
not  all,  the  states,  to  make  a  conveyance  of  the  land  to 
the  purchaser  at  the  sale,  and  this  is  usually  regarded 
as  necessary  to  vest  the  legal  title  in  the  purchaser. 
This  conveyance  should  recite  the  recovery  of  the  judg- 
ment, the  issue  of  the  writ,  and  the  sale  thereunder, 
but  any  requirements  in  this  regard  are  regarded  as 
directory  merely.  The  conveyance  must  usually  be 
executed  like  other  conveyances,  and  an  acknowledg- 
ment is,  in  most  states,  though  not  in  all,  necessary  only 
for  the  purpose  of  record.  If  the  conveyance  is  in- 
valid, the  purchaser  is  ordinarily  entitled  to  have  a 
valid  one  executed  in  its  place. ^* 

In  the  case  of  a  sale  under  execution,  the  sale  is 
made  bv  the  sheriff  as  a  ministerial  officer,  acting  under 
the  writ,  and  the  court  has  no  control  over  his  actions, 
and,  except  in  a  few  states,  no  confirmation  of  the  sale 
by  the  court  is  necessary  in  order  to  validate  the  sale. 
An   execution   sale   is   accordingly   to   be   distinguished 

15.  Freeman,     Executions,     §§  17.     3    Freeman,    Executions,    § 
19,     20;      Kleber,     Void     Judicial       314. 

Sales,  §§  262-267,  294.  18.     3    Freeman,    Executions,    § 

16.  3    Freeman,    Executions,    §      324  ct  seq. 
339  et  seq. 


2150  Eeal  Peoperty.  [§§  551,  552 

from  the  sales  hereafter  referred  to  in  this  chapter, 
which  are  made  in  conformity  with  the  order  of  a  court, 
and  must  be  confirmed  by  it,  and  which  are  accordingly 
I'egarded  as  the  act  of  the  court,  though  a  commissioner 
or  other  officer  is  necessarily  employed  by  the  court  as 
an  instrument  in  making  the  sale.  An  execution  sale 
is  accordingly  not,  properly  speaking,  a  judicial  sale.'^ 

§  551.     Sales  in  equity  at  the  instance  of  creditors. 

The  various  liens  to  which  land  may  be  subject  in  behalf 
of  a  person  other  than  the  owners  are  enumerated  in 
another  part  of  this  work.^^  These  liens  are  almost  in- 
variably enforced  by  a  sale  of  the  land  under  the  de- 
cree of  a  court  of  equity  for  the  purpose  of  paying  the 
amount  of  the  lien  from  the  proceeds.  Likewise,  equity 
may  decree  a  sale  in  a  creditors'  suit  brought  to  ob- 
tain a  discovery  of  assets,  to  prevent  waste  and  spolia- 
tion thereof,  or  to  reach  property  which  is  not  subject 
to  execution  because  of  its  equitable  character,  or  be- 
cause transferred  by  a  conveyance  fraudulent  as  to 
creditors.2^ 

§  552.  Sales  of  decedent's  lands.  At  common  law, 
an  unsecured  debt  could  not  be  enforced,  as  against  the 
real  property  of  the  debtor,  after  the  latter 's  decease, 
unless  it  was  due  on  a  contract  under  seal,  which  ex- 
pressly bound  the  debtor's  heirs,  and  then  it  could  be 
enforced  against  the  heir  to  the  extent  of  any  land  in 
fee  simple  descended  to  him.^-  Under  this  condition  of 
the  law  there  was  no  remedy  available  to  even  the 
specialty  creditor  in  case  the  decedent  had  devised  the 
land,  or  the  heir  had  aliened  it,  and,  accordingly,  it 
was  provided  by  statute^^  that  a  devisee  should  be 
liable  to  the  same  extent  as  the  heir,  and  that  no  alien- 
ation by  either  the  heir  or  the  devisee  should  affect  his 

19.  Kleber,  Void  Judicial  Sales.       1413-1415. 

§i    15-20.  22.     2  Blackst.  Comm.  244,  Wil- 

20.  Post,    Part    VI.  liams,  Real  Prop.    (21st  Ed.)    280. 

21.  3     Pomeroy,     Eq.    Jur.     §§  23.     3   Wm.   &  M.   c.   14    (A.   D. 


§  552]  Judicial  Process  or  Decree.  2151 

liability  for  the  debt.  These  statutes  imposed  on  the 
heir  and  devisee  a  personal  liability  for  the  debt  to  the 
extent  of  the  value  of  land  descended  or  devised  to 
him,  and  this  was  restricted  to  debts  under  seal. 
Later  it  was  provided-'*  that  all  interests  in  land  should 
be  assets  for  the  payment  of  debts,  whether  created  by 
simple  contract  or  by  contract  under  seal,  and  that 
the  heir  or  devisee  might  be  sued  in  equity  accordingh' 
by  any  creditor  of  the  deceased.  In  this  country  there 
is  probably  in  every  state  a  statute  making  the 
realty  of  a  decedent  liable  for  his  debts  as  against  his 
heirs  and  devisees.^^ 

Under  the  English  statute  making  the  lands  of  a 
decedent  liable  in  equity  for  his  debts,  the  proceeding 
to  subject  the  land  was  by  a  "creditors'  bill"  in  equity 
and  this  mode  of  proceeding  for  the  purpose  is  recog- 
nized in  a  number  of  the  states.-^  In  most  of  the  states, 
however,  the  probate  court  has  full  jurisdiction  to  order 
the  sale  of  land  for  the  payment  of  debts,  and  likewise, 
frequently,  for  other  purposes,  such  as  the  payment  of 
legacies,  or  in  order  to  make  distribution,  and  the 
statutes  usually  provide  that  such  sales  shall  be  ordered 
on  the  application  of  the  executor  or  administrator.^''' 
The  length  of  time  after  the  decedent's  death  within 
which  a  sale  of  lands  for  this  purpose  can  be  applied 
for  by  the  personal  representatives  or  the  creditors  of 
deceased  is  in  some  states  fixed  by  statute. ^^  In  the  ab- 
sence of  statute,  it  is  said  that  the  application  must 
be  made  within   a  reasonable   time,^^   and   occasionally 

1691;   6  &  7  Win.  Ill  c.  14   (A.  D.  tion,  §   463;    11  Am.  &  Ens.  Enc. 

1695),    1    Wm.    IV    c.    47    (A.    D.  Law,     1072. 

1830).  27.     2  Woerner,  Administration, 

24.  3  &   4   Wm.    IV.   c.   104    (A.  §§   463,   464. 

D.   1833).  28.     2  Woerner,  Administration, 

25.  2   Dembitz,   Land   Titles.    §       §    465. 

150;    2    Woerner,    Administration,  29.     Liddel   v.    MrVickar,   11   N. 

§§  463,  490;    11  Am.  &  Eng.  Enc.  J    Law,  44;    Rosenthal  v.  Renick, 

Law    (2d    Ed.)    838.  44    111.    202;    Killough    v.    Hinton, 

26.  3    Pomeroy,    Eq.     .lur.     §§  54  Ark.  65;  State  v.  Probate  Court 
1152-1154;  2  Woerner,  Admiuistra- 


2152  Real  Pkopekty.  [§  552 

this  has  been  determined  with  reference  to  the  statutory 
period  in  which  an  action  to  recover  lands  is  barred.*^*' 

A  sale  of  real  estate  to  pay  debts  is  ordinarily 
authorized  only  when  the  personal  estate  is  insufficient 
for  the  purpose,  and  that  such  is  the  case  must  appear 
from  the  bill  or  petition  for  sale  in  order  to  give  the 
court  jurisdiction.  In  some  states  proceedings  for 
sale  by  an  executor  or  administrator  are  regarded  as 
adversary  to  the  heirs  or  devisees,  so  that  a  failure  to 
give  notice  to  the  latter  as  required  by  statute  renders 
the  sale  void.  In  other  states  they  are  regarded  as 
proceedings  in  rem,  and  so  valid,  though  no  notice  is 
given.^^  In  a  number  of  states  the  failure  of  the  execu- 
tor or  administrator  to  give  bond  before  making  sale 
as  required  by  the  statute  is  regarded  as  absolutely  in- 
validating the  sale,  and  sometimes  such  effect  is  given 
to  a  failure  to  make  the  proper  oath.^- 

The  sale  must  comply  not  only  with  the  require- 
ments of  the  statute,  but  also  with  the  terms  of  the  or- 
der for  sale.  The  sale,  when  made  by  the  executor  or 
administrator,  must,  in  most  states,  be  confirmed  by 
the  court  in  order  to  have  any  effect  whatsoever  in 
passing  title,  since  the  personal  representative,  not  ex- 
pressly empowered  to  sell  by  the  terms  of  the  will,  is 
regarded  as  the  instrument  of  the  court,  and  the  sale, 
to  be  valid,  must  be  adopted  by  the  court  as  its  own 
act.^^  After  the  sale  is  confirmed,  the  executor  or 
administrator,  still  acting  as  the  instrument  of  the 
court,  is  usually  required  to  make  a  conveyance  of  the 

ol  Ramsey  County,  40  Minn.  296;  Sumner  v.   Child,   2   Conn.    607. 
Ferguson   v.    Scott,    49    Miss.    500.  31.     2  Woerner,  Administration, 

See   Bindley's   Appeal,   69   Pa.    St.  §     466;      Kleber,     Void     Judicial 

295.  Sales,    §§    72,    156. 

30.    Ricard      v.      Williams,      7  32.     2  Woerner,  Administration, 

Wheat.  (U.  S.)   59,  55  L.  Ed.  398;  §  472;  Kleber,  Void  Judicial  Sales, 

Wingerter    v.    Wlngerter,    71    Cal.  _  §§    253,    254,    316,    317. 
105,    11    Pac.    853;    Rosenthal    v.  '       33.     Kleber,  Void  Judicial  Sales, 

Renick,    44    111.    202;    Bozeman   v.  §§    1-4,    381. 
Bozeman,  82  Ala.  389,  2  So.  732; 


§§  553,  554]       Judicial  Process  or  Decree.  2153 

land  to  the  purchaser,  and,  until  such  conveyance  is 
executed,  the  purchaser  has  an  equitable  title  inerely.^^ 

§  553.    Sales  of  lands  of  infants  and  insane  persons. 

The  extent  to  which  a  court  of .  equity  has  inherent 
power  to  sell  the  land  of  an  infant  for  his  benefit  is 
involved  in  considerable  doubt;  but  the  question  has, 
to  a  considerable  extent,  lost  its  importance,  owing  to 
the  passage  of  acts,  in  most,  if  not  all,  of  the  states, 
authorizing  such  sales  by  courts  either  of  etiuity  or 
probate  jurisdiction.^^  These  sales  are  usually  con 
ducted  by  the  guardian  of  the  infant,  under  the  direction 
of  the  court,  the  proceedings  being  generally  similar  to 
those  in  the  case  of  sales  of  decedents'  lands.  The  ap- 
plication for  the  sale  is  ordinarily  required  to  h(^  made 
by  the  guardian,  but  in  some  states  the  statute  author- 
izes it  to  be  made  by  parents  or  other  persons  inter- 
ested in  the  infant 's  welf are.^*^ 

The  lands  of  persons  non  compos  mentis  may  like- 
wise be  sold  under  the  direction  of  a  court  by  force 
of  statute  to  that  effect  in  all  or  in  most  of  the  states, 
and  occasionally  such  power  has  been  asserted  by  courts 
of  equity  apart  from  statute.  The  sale  is  usually  made 
by  the  committee  or  guardian  of  the  lunatic  acting  as 
an  instrument  of  the  court."^^ 

§  554.    Sales  and  transfers  for  purpose  of  partition. 

Proceedings  by  one  interested  in  land  as  co-owner  with 
others,  to  obtain  a  partition  or  sale  of  the  land,  have 
previously  been  discussed.''"^  In  this  country  the  juris- 
diction  of   proceedings   for  partition   is   usually  deter- 

34.  2  Woerner,  Administration,  36.  W^oerner,  Guardianship,  §§ 
§    480.  08-78;    2   Dembitz,   Land   Titles,   § 

35.  And  the  question  of  the  151;  3  Pomeroy,  Eq.  Jur.  §  1309; 
inherent  power  of  a  court  of  Kleber,  Void  Judicial  Sales,  §§ 
equity   may  well   arise  by  reason  93,    157,    234-2.'',6. 

of   a   failure   to   comply    with   the  37.     Woerner,    Guardianship,    § 

statutory   requirements.     See  edi-  148;    2    Dembitz,    Land    Title.s,    § 

torial    note,    23    Harv.    Law    Rev.  152. 

473.  38.     Ante.  §  204. 


2154  Real  Property.  [§  555 

mined  by  the  statute,  and  there  are  in  many  states 
special  provisions  for  the  partition  of  land  belonging  to 
a  decedent  in  the  probate  court,  or  for  a  sale  for  the 
purpose  of  partition.^*^ 

As  before  stated,  a  partition  proceeding  is  avail- 
able only  when  there  is  a  unity  of  possession  in  two  or 
more  persons,  and  consequently  cannot  be  employed  in 
order  to  apportion  the  land,  or  to  procure  a  sale,  when 
the  persons  interested  in  the  land  have  successive  rights 
of  possession,  as  when  thej^  are  tenants  for  life  and  in 
remainder,  or  one  is  tenant  in  fee  simple,  subject  to  an 
executory  limitation  in  favor  of  the  other.  In.  a  few- 
states  there  is  a  provision  for  a  sale  in  such  case  under 
the  direction  of  a  court  of  equity.^'' 

§  555.  Decrees  transferring  title.  The  court  of 
chancery  in  England  always  acted  in  personam,  and  not 
in  rem,  and  consequently,  in  adjudicating  rights  of  the 
different  parties  to  a  proceeding  concerning  land,  it  did 
not,  by  its  decree,  undertake  to  transfer  the  title  from 
one  to  the  other  of  such  parties,  but  gave  relief  by 
ordering  one  party  to  make  a  conveyance,  cancel  an 
instrument,  or  do  other  acts  so  as  to  establish  and  per- 
fect the  rights  of  the  respective  parties  as  adjudicated. 
This  principle  of  action  on  the  part  of  courts  of  equity 
has,  however,  been  changed  by  statute  in  many  states  of 
this  country,  so  that,  instead  of  requiring  the  parties  to 
carry  out  the  decree,  the  court  itself  does  so,  acting 
through  a  commissioner  or  other  officer,  and,  under  some 
statutes,  the  decree  alone,  without  any  further  action,  is 
sufficient  to  transfer  the  title."* ^  As  regards  land  out- 
side the  jurisdiction,  however,  the  court  must  still  act 
in  personam}^ 

39.  Freeman,      Cotenancy,      §§  42.     Pomeroy,   Eq.   Jur.   §§   134, 
550-564.  135,     170,     1317.       See     Arndt    v. 

40.  2   Dembitz,   Land   Titles,    §  Griggs,   134  U.   S.  316,   33   L.   Ed. 
156.  918;    Lindley    v.    O'ReiUy,    50    N. 

41.  Huston,  Decrees  in  Equity,  .J.   L.   636,   1   L.   R.   A.  79,  7  Am. 
Ch.   2.  St.   Rep.   802,   15   Atl.   379. 


§  556]  Judicial  Process  or  Decree.  2155 

While  a  judgment  in  an  action  concerning  land  of  a 
strictly  legal  character,  such  as  ejectment,  or  the  old 
real  actions,  or  the  statutory  ''trespass  to  try  title," 
is  usually  decisive  of  the  rights  of  the  parties  thereto 
in  regard  to  the  ownership  of  the  land,  as  betweon  them- 
selves, it  cannot  be  regarded  as  transferring  t!)e  title 
in  any  sense,  but  merely  decides  what  effect  is  to  be 
given  to  previous  transfers. 

§  556.  Adjudications  of  bankruptcy.  The  present 
bankrupt  act^"  provides  that  the  trustee  of  a  bankrupt, 
upon  his  appointment  and  qualification,  shall  be  vested 
b}^  operation  of  law  with  the  title  of  the  bankrupt,  as  of 
the  date  he  was  adjudged  a  bankrupt,  to  all  proj^erty 
which,  prior  to  the  filing  of  the  petition,  he  could  by  any 
means  have  transferred,  or  which  might  hav^e  been 
levied  upon  and  sold  under  judicial  process  agaiiist  him. 
The  title  to  the  bankrupt's  land,  therefore,  as  well  as 
other  property,  passes,  as  it  were,  by  force  of  Ihe  ad- 
judication of  bankruptcy,  to  the  trustee  subsequently 
appointed.  Previous  bankrupt  acts,  as  well  as  the  in- 
solvency statutes  of  the  various  states,  have  contained 
similar  provisions  transferring  the  property  of  the 
bankrupt  or  insolvent  to  the  trustee,  for.  the  purpose  of 
distribution  among  creditors."*^ 

43.     Act  July  1,  1898    (30   Stat.  44.     16  '  A.    &    E.    Encyc.    Law 

565,   §   70a).  721. 


CHAPTER  XXIX. 

TRANSFER  FOR  NONPAYMENT  OF  TAXES, 

§  557.  Character  of  title  acquired. 

558.  Judgment  for  taxes. 

559.  Forfeiture  to  state. 

560.  Remedial   legislation. 

§  557.     Character  of  title  acquired.     The  payment 
of  taxes  on  land  is  in  this  country  usually  enforced  by 
a  summary  sale  of  the  land,  conducted  by  the  tax  col 
lector  or  some  other  ministerial  officer. 

The  power  to  sell  lands  for  nonpayment  of  taxes  is 
a  purely  statutory  power,  and  it  has  always  been  held 
that  the  statutory  requirements  as  to  the  mode  of  mak- 
ing sale  must  be  strictly  complied  with,  and  that,  more- 
over, since  the  power  to  sell  exists  only  in  case  there 
are  valid  taxes,  which  are  unpaid,  no  title  will  pass  un- 
less the  tax  was  levied  and  assessed  in  accordance  with 
law.  Tax  sales  have  accordingly  been  held  to  be  in- 
valid in  particular  cases  for  want  of  a  valid  assessment 
or  valuation  of  the  property,  duly  verified  by  the  proper 
officers,  and  approved  by  the  legal  reviewing  authority 
or  "board  of  equalization,"  defects  in  the  levy  of  the 
tax,  defects  in  the  warrant  issued  to  the  collector  for 
the  collection  of  the  tax,  failure  to  return  the  list  of 
deliquent  taxes,  noncompliance  with  the  various  re- 
quirements as  to  the  mode  of  advertising  the  sale, 
failure  to  comply  with  the  statute,  and  also  with  the 
advertisement,  as  to  the  conduct  of  the  sale,  failure  to 
sell  all  the  land,  though  a  part  brings  enough  to  pay  the 
taxes. 

Furthermore,  the  statutory  requirements  as  to  the 
return  of  the  sale  by  the  officer  must  be  complied  with, 
and  he  must  make  a  conveyance  to  the  purci'aser  in 
strict  conformity  to  the  statute.     The  sale  is  'ilso  in- 

(2156) 


§   557]  NOXPAYMENT  OF   Taxes.  2157 

valid  if  the  tax  was  unconstitutional,  or  not  pro})erly 
levied  by  the  legislature  or  the  municipal  authorities 
or  if  the  land  was  exempt,  or  the  taxes  liad  been  paid 
before  the  sale.  In  vievv^  of  these  many  possible  de- 
fects in  the  proceedings,  as  well  as  others  which,  might 
be  mentioned,  it  is  not  strange  that  titles  based  on  tax 
sales  are  usually  regarded  as  of  most  questionable 
soundness,  and,  though  this  condition  of  things  has 
been  to  some  extent  removed  by  legislation  of  a  char- 
acter hereafter  referred  to,  the  possibilities  of  failure 
of  title  through  defects  in  the  proceedings  are  stdl  such 
that  land,  when  sold  for  taxes,  rarelj^,  if  ever,  brings  its 
actual  value,  and  its  purchase  is  ordinarily  for  pur- 
poses of  speculation,  rather  than  for  actual  occu])ation/ 
By  the  statutes  of  many  states,  the  sale  is  of  an 
estate  in  fee  simple  in  the  land,  free  from  any  incum- 
brances, and  without  reference  to  the  estate  or  interest 
belonging  to  the  particular  person  against  whom  the 
tax  was  assessed,  that  is,  the  proceeding  for  sale  is  in 
eifect  against  the  land,  and  not  against  any  particular 
owner  thereof ;  and  if  one  interested  in  the  land,  tliougii 
not  bound  to  pa}''  the  taxes  as  against  the  person  in  pos- 
session, desires  to  protect  his  interest,  he  must  pay  the 
taxes,  or  redeem  from  the  tax  sale.  So,  a  remainderman 
or  lienor  may,  by  the  failure  of  the  owner  in  possession 
to  pay  the  taxes,  be  divested  of  all  interest  in  the  land. 
In  some  states,  however,  or  under  particular  acts,  the 
taxes  are  not  enforceable  against  the  entire  interest  in 
the  land,  but  against  the  interest  onh'  of  tho  person 
against  whom  the  taxes  are  assessed,  in  which  case  th/.' 
interests  of  other  owners  or  of  lienors  are  not  divested 
by  the  sale. 

1.     An  admirable  sketch  of  the  are    those    by    Henry    C.    Black, 

uncertainties    involved    in    a    tax  Esq.  and  by  Robert  S.  Blackwell, 

title    is   contained    in    2    Dembitz,  the     fifth     edition     of     which     is 

Land  Titles,  p.,  1323  et  seq.    Tlie  well    edited    by    Frank    Parsons, 

standard    works    upon    the    very  Esq. 
extensive     subject     of    tax     sales 
2  R.  P.— 61 


2158  Real  Property.  [§  558 

The  statute  usually,  if  not  always,  names  a  certain 
period,  varying  from  six  months  to  three  years,  within 
which  the  owner  of  the  laud  may  redeem  from  the  sale 
by  the  pa^Tuent  to  the  purchaser  of  the  purchase  money, 
interest,  and  costs,  in  addition  to  which  he  is  ordinarily 
required  to  pay  a  penalty,  calculated  in  interest  at  n 
high.  rate. 

The  purchaser  has,  until  the  execution  ot  a  con- 
veyance or  ''deed"  by  the  officer  making  the  sale, 
neither  a  legal  nor  equitable  title  to  the  land,  but  rather 
a  lien  thereon  for  the  amount  of  the  purchase  money, 
interest,  costs,  and  penalty.  He  is  usually  entitled  to 
the  deed  upon  the  expiration  of  the  time  for  redemption, 
and  not  before,  and  the  statutes  frequently  imprse  cer- 
tain formalities  as  conditions  precedent  to  his  obtaining 
the  deed.  The  requirements  of  the  statute  as  to  the 
form  of  the  deed,  which  are  frequently  most  detaileil 
and  precise  in  character,  and  often  include  full  recitals 
of  the  antecedent  proceedings,  must  be  strictly  followed, 
and  the  deed  must  be  executed  in  strict  compliance  wnith 
the  statute  in  order  to  vest  the  title  in  the  purchaser, 

§  558.  Judgment  for  taxes.  In  some  states  the  leg- 
islator has  provided  that  the  sale  of  land  for  taxes 
shall  be  preceded  by  the  rendition  of  a  judgment  deter- 
mining the  amount  of  the  taxes  due.  The  proceeding 
to  obtain  such  a  judgment  is  in  the  nature  of  a  proceed- 
ing in  rem  against  the  land,  rather  than  in  personam 
against  the  owner  of  the  land,  and,  consequently, 
personal  service  of  notice  of  the  proceeding  is  not 
regarded  as  a  prerequisite  to  the  judgment,  construc- 
tive service  by  publication  being  authorized.  Any  ob- 
jections to  the  validity  of  the  tax  or  to  the  assessment 
must  be  made  by  way  of  defense  to  the  application  for 
judgment,  and  the  judgment  is.  until  reversed,  re- 
garded as  conclusive  of  the  right  to  make  the  sale, 
according  to  numerous  decisions,  even  though  the  taxes 
were  actually  paid. 


^§  551>,  560]  XoxPAYMEXT  OF  Taxes.  2151) 

§  559.  Forfeiture  to  state.  The  statute  occasiou- 
ally  provides  tliat,  upon  noiipaymeut  of  taxes  due  the 
state,  the  laud,  instead  of  being  sold,  shall  be  for- 
feited to  the  state.  To  what  extent  such  a  forfeiture  is 
valid  if  not  preceded  by  a  judicial  finding  that  a  default 
in  the  payment  of  taxes  exists  is  a  question  as  t>.  which 
there    has    been    considerable    difference    of    opinion. - 

§  560.  Remedial  legislation.  The  legislatures  of 
the  various  states  have,  particularly  in  more  recent 
years,  frequently  passed  curative  statutes  for  the  pur- 
pose of  validating  tax  sales  previously  made,  as  well 
as  those  thereafter  to  be  made.  These  acts  are  re- 
garded as  valid  in  so  far  as  they  undertake  to 
validate  the  proceedings  in  respect  to  a  particuhir  step 
therein  with  which  the  legislature  could  have  dis})ensed 
in  the  first  place,  but  no  furtlier.  The  same  end  of 
curing  defective  proceedings  has  frequently  been  at- 
tained by  the  passage  of  acts  providing  that  the  deed 
to  the  purchaser  shall  be  prima  facie  evidence  of  th" 
regularity  of  the  proceedings,  and  it  has  sometimes 
been  made  even  conclusive  evidence  in  this  respect,  this 
latter  legislation  being  valid,  however,  as  are  other 
curative  acts,  in  regard  only  to  matters  which  conld 
have  been  previously  dispensed  with. 

Another  mode  in  which  the  legislatures  have  under- 
taken to  add  to  the  security  of  the  purchaser  at  a  tax 
sale  is  by  "short"  statutes  of  limitation  in  connection 
with  tax  titles,  requiring  the  original  owner  to  proceed 
to  recover  the  land  from  the  jnirchaser  within  a  certain 
number  of  years,  less  than  that  within  which  actions  for 
land  must  ordinarily  be  brought.  These  statutes  have 
usually,  like  the  other  statutes  having  the  same  purpose- 
in  view,  been  regarded  as  applicable  only  wli^ii  tlie 
jurisdictional  requirements  of  a  valid  sale  were  present, 
and  as  insufficient  to  validate  a  sale  wliich  is  void  for 
want  of  jurisdiction  on  the  part  of  the  officials  to  make 
the  sale. 

2.     Cooley.   Taxalitm    (:!rd    V.(\.) 
S5S  ct  scfj. 


CHAPTER  XXX. 

APPROPRIATION   UNDER  EMINENT   DOMAIN. 

§  561.  TTie  power  to  appropriate. 

562.  Rights    subject  to   appropriation. 

563.  Mode  of  appropriation. 

564.  Time  of  passing  of  title. 

565.  Cessation  of  public  use. 

§  561.  The  power  to  appropriate.  The  power  of 
the  state  to  approjDriate  profjerty  for  public  nse.  upon 
payment  of  just  compensation,  may  be  exercised  direct- 
ly by  the  state  itself,  or  the  state  may,  in  the  exercise 
of  the  power,  select  particular  agencies,  either  natural 
persons  or  corporations,  on  whom  it  confers  the  right 
to  take  private  projDerty  for  joublic  use.  Thus,  the 
legislature  may,  and  ordinarily  does,  authorize  munici- 
pal corporations  to  appropriate  or  "condemn"  land 
for  street  and  other  municipal  purposes,  and  s(;  it  may 
authorize  a  railroad  or  irrigation  company,  or  other 
private  corporation,  to  appropriate  property  for  its  use, 
upon  jDayment  of  just  compensation,  provided  only  the 
use  for  which  it  is  appropriated  is  of  a  public  character. 
This  grant  by  the  legislature  of  the  right  to  exercise 
the  power  is  frequently  by  means  of  a  general  statute 
operating  in  favor  of  the  corporations  of  a  particular 
class  which  may  desire  to  exercise  the  right.  ^ 

The  result  of  the  exercise  of  the  power  in  connection 
.with  land  is  to  transfer  to  the  state,  or  to  the  corporate 
bod}^  to  which  the  power  is  delegated  by  the  state,  aJl 
or  some  of  the  rights  in  particular  land  previously 
vested  in  a  particular  individual,  or  in  a  number  of 
individuals. 

1.     Randolph,  Eminent  Domain,      main   (3rd  Ed.)    §  367  et  seq. 
§S    102-106;    Lewis,    Eminent    Do- 

(2160) 


§  f)62]  Eminent  Domain.  2161 

§  562.  Rights  subject  to  appropriation.  There 
may  be  an  a]3i3ropriation  of  the  rights  of  owner j^"hip  in 
a  particular  piece  of  land,  the  entire  interest  of  the 
former  owner  thus  passing  to  the  appropriator,  or  a 
j-ight  merely  to  use  the  land  for  the  particular  ]3ublic 
purpose  may  be  acquired.  Whether  there  is  an  appro- 
priation of  the  ownership  of  the  land  is  u-i^ally  a 
question  of  the  construction  of  the  statute  und'.-r  which 
the  land  is  condemned,  in  connection  with  any  con- 
stitutional restrictions  upon  the  power.  There  i<  usual- 
ly a  presumption  that  the  ownership,  or,  as  it  is  ordi- 
narily expressed,  the  ''fee,"  does  not  pass,  and,  unless 
the  statute  explicitly  authorizes  the  taking  of  a  fee,  or 
this  is  necessary  for  the  particular  use,  it  is  ordinarily 
considered  that  a  right  of  user  only  is  taken  by  even 
a  municipal  corporation.-  So  a  railroad  company  ordi- 
narily acquires  by  condemnation  merely  an  easement  in 
the  land,  and,  in  the  case  of  land  taken  for  bighway 
purposes,  the  public  frequently  acquires  merely  the  right 
to  use  the  land  for  such  purposes. 

The  rights  of  the  owner  of  land  may  be  iisfi'inged, 
7iot  by  the  actual  taking  of  the  land  for  a  particular 
public  purpose,  but  by  the  fact  that  the  utilization  of 
neighboring  land  for  such  a  purpose  results  in  the  fore  • 
ing  of  water  upon  the  former  land,  or  the  casting 
thereon  of  stone,  earth,  or  sewerage,  thus  interfering 
with  the  owner's  rights  of  user  in  the  land,  and  to 
that  extent  appropriating  his  rights  in  the  land.*^  The 
taking  for  ])ublic  use  may  also  involve,  not  a  physical 
invasion  of  the  land  itself,  but  merely  the  divesting  of 
some  of  the  natural  rig'hts  incident  to  the  owneishi))  of 
land.  80,  one  may  be  divested  of  rights  as  to  the  flow  of 
a  natural  watercourse,  of  access  to  water,  or  of  rights 
with  respect  to  percolating  and  surface  water.     Like- 

2.     Randolph,  Eminent  Domain,  (U.  S.)   ICG,  20  L.  Ed.  557;   Eaton 

§  205;   2  Lewis,  Eminent  Domain,  v.   Boston,  C.  &  M.  R.  Co.,   51  N. 

§§  449-451.  H.    504.      See    editorial    notes.    19 

.''..     Pumpelly    v.    Green    Bay    &  llarv.  Law  Rev.  127,  12  Columbia 

Mississippi    Canal    Co.,    13    Wall.  Law    Rev.    1C5. 


2162 


Real  I^rofekty. 


[§  5(i2 


wise,  one  maj'  be  deprived  of  his  natural  right  to  free- 
dom from  dust,  smoke,  noise,  and  the  like.  The  cases 
are  in  very  considerable  conflict  as  to  the  right  to 
compensation  for  consequential  injuries  to  land,  arising 
from  the  invasion  of  the  natural  rights  of  freedom  from 
dust,  noise,  or  noxious  odors.* 

One  may  be  entitled  to  compensation  as  having  been 
deprived,  by  the  physical  appropriation  of  another  per- 
son's land,  of  an  easement  which  he  enjoyed  in  such 
land.^  And  it  has  been  decided  that  if  land  is  subject 
to  an  agreement  restricting  its  use,  the  person  for  whose 
benefit  such  restriction  exists  is  entitled  to  compensa- 
tion when  the  land  is  appropriated  under  the  power 
of  eminent  domain  for  a  purpose  which  involves  a 
violation  of  the  agreement.^ 


4.  Randolph,  Eminent  Domain, 
§  152;  1  Lewis,  Eminent  Do- 
main, §  235.  See  notes,  19  Harv. 
Law  Rev.  127;  10  Columbia  Law 
Rev.   245,  12  Id.  165. 

5.  1  Lewis,  Eminent  Domain, 
§  223;  Strickler  v.  City  of  Colo- 
rado Springs.  16  Colo.  61,  25  Am. 
St.  Rep.  245.  26  Pac.  313;  Indian- 
apolis &  C.  G.  R.  Co.  V.  Belt  Ry. 
Co.,  110  Ind.  5,  13,  10  N.  E.  923; 
Ladd  V.  City  of  Boston,  151  Mass. 
585,  21  Am.  St.  Rep.  481,  24  N. 
E.  858;  Detroit  Leather  Specialty 
Co.  V.  Michigan  Cent.  R  Co.,  149 
Mich.  588,  113  N.  W.  14;  Arnold 
V  Hudson  River  R.  Co.,  55  N.  Y. 
661;  Willey  v.  Norfolk  S.  R.  Co., 
96  N.  C.  408.  1  S.  E.  446;  Neff 
v  Pennsylvania  R.  Co.,  202  Pa. 
371,  51   Atl.   1038. 

6.  Long  Eaton  Reci-eation 
Grounds  Co.  v.  Midland  Railway 
(1902)  2  K.  B.  574;  Flynn  v. 
New  York,  W.  &  B.  R.  Co.,  218 
N.  Y.  140.  Ann.  Cas.  1918B.  588. 
112  N.  E.  913.  See  Allen  v.  De- 
troit,   167    Midi.    464.    133    N.    W. 


317,  36  L.  R.  A.  N.  S.  890,  and 
editorial  note  21  Harv.  Law  Rev. 
139.  In  Ladd  v.  Boston,  151 
Mass.  585,  21  Am.  St.  Rep.  585, 
24  N.  E.  858,  a  like  result  was 
obtained  by  regarding  the  re- 
strictive agreement  as  creating  a 
legal  easement.  See  also,  to  the 
same  general  effect  Riverbank 
Imp.  Co.  V.  Chadwick,  228  Mass. 
242,    117   N.   E.   244. 

That  there  is  no  right  of  com- 
pensation in  such  a  case  wa.s 
decided  in  Doan  v.  Cleveland 
Short  Line  R.  Co.,  92  Ohio  St. 
461,  112  N.  E.  505,  on  the 
ground  that  if  the  person  en- 
titled to  the  benefit  of  the  re- 
striction is  allowed  damages  in 
such  case,  "only  a  mere  device 
of  conveyancing  is  necessary  to 
defeat  entirely  the  rule  that  de- 
preciation of  property  incidental 
to  a  public  use  does  not  con- 
stitute a  taking,"  quoting  United 
States  V.  Certain  Lands  in  Town 
of  Jamestown,  R.  I.,  112  Fed. 
622.     See  also  Wharton  v.  United 


§  563]  Eminent  Domain.  2163 

The  fact  that  one's  h\iid  abuts  on  a  highway  or 
street  is  quite  generally  considered  to  give  him  certain 
rights  of  light,  air,  and  access,  interference  with  which 
entitles  him  to  compensation  as  for  the  taking  of  prop- 
erty. Eights  of  this  character,  as  the  subject  of  com- 
pensation, have  been  before  referred  to,  as  has  the  ques- 
tion of  the  extent  to  which  the  previous  appro ja'iation 
or  dedication  of  land  for  a  highway  authorizes  its  use, 
without  further  compensation,  for  particular  purposes, 
on  the  ground  that  such  purposes  are  of  a  ''highway" 
character.'^ 

§  563.  Mode  of  appropriation.  The  statutes  usually 
contain  explicit  provisions  as  to  the  constitution  of  the 
tribunals  which  are  to  decide  the  amount  of  compensa- 
tion to  be  paid  for  the  property  taken.  Such  a  tribunal 
may,  in  the  absence  of  any  constitutional  requirement 
to  the  contrary,  be  composed  of  a  jury  of  less  than 
twelve  men,  or  of  a  board  of  commissioners. 

The  petition  for  the  condemnation  should  fJiow  the 
public  character  of  the  use,  and  the  necessity  of  taking 
the  particular  land,  and  this  latter  must  be  accurately 
described.  Notice  to  the  owner  is  necessary  before  the 
compensation  is  assessed,  but  constructive  notice  by 
publication  is  usually  regarded  as  sufficient.  The  action 
of  the  tribunal  in  fixing  the  amount  of  the  compensation 
is  frequently  subject  to  review  by  appeal  or  certiorari, 
but  is  not  so  in  the  absence  of  a  statutory  provision. 
In  the  case  of  an  attempted  taking  of  private  j.ro|)ei-ty 
under  color  of  the  right  of  eminent  domain,  vrlnch  is, 
however,  unauthorized,  on  account  either  of  the  private 
nature  of  the  use,  the  lack  of  necessity  for  the  appro- 
priation, or  lack  of  legislative  authority,  the  owner  may 
usually  obtain  an  injunction  against  the  wrongful  entry 
on  the  land,  or  may  sue  in  ejectment  or  trespass,  and 
sometimes  other  remedies  are  available. 

states,  153  Fed.   876,   88  C.  C.  A.  7.     Ante,  §  417. 

58,  to  the  same  effect. 


2164  Real  Peopertv,  [§  504 

The  constitutions  of  some  states  provide  tlist  cora- 
poni^ation  shall  be  made  before  the  land  is  taken,  but  in 
others,  where  there  is  no  such  provision,  the  leai-'^latuie 
sometimes  authorizes  a  taking  of  property,  and  leaves 
the  onus  upon  the  landowner  of  instituting  proceedings 
to  ascertain  the  compensation  to  be  paid,  and  to  enforce 
its  pa^anent.  Such  legislation  has  usually  been  siipport- 
ed  in  the  case  of  a  taking  by  the  state  or  a  municipal 
corporation,  but  in  a  number  of  states  it  has  !)een  held 
that,  in  the  case  of  the  actual  occupation  of  land  by  a 
private  corporation,  the  payment  of  the  comitensation 
must  be  in  some  way  secured  to  the  owner  of  the  land 
before  he  can  thus  be  deprived  of  his  property.  WheTi 
the  taking  of  property  does  not  involve  the  direct  oc- 
cupation of  the  land  of  the  person  claiming  compensa- 
tion, but  merely  consequential  injuries  thereto,  the 
actual  payment  of  the  compensation  is  naturally  subs.e- 
quentto  the  acts  which  constitute  the  taking,  since  th-^ 
])roper  amount  thereof  was  not  previously  ascertaina- 
ble.« 

§  564.  Time  of  passing  of  title.  The  statute  is 
usually  construed  as  divesting  the  title  of  the  owner  of 
the  land  taken  only  upon  payment  of  the  compensation 
aw'arded,^  and  this  is  necessarily  the  case  wdien  the  con- 
stitution provides  that  the  compensation  shall  be  paid 

8.  Randolph,  Eminent  Domain,  Chicago,  R.  I.  &  P.  R.  Co.,  57 
§§  231,  291,  362;  2  Lewis,  Emi-  Mo.  256;  Flynn  v.  Beaverhead 
nent  Domain,   §§    678-681,  872.  County,    49    Mont.    347,    141    Pac. 

9.  New  Orleans  &  S.  R.  Co.  v.  673;  Manchester  &  K.  R.  Co.  v. 
Jones,  68  Ala.  48;  Fox  v.  West-  Keene,  62  N.  H.  81;  Erie  County 
ern  Pac.  R.  Co.,  31  Cal.  538;  v  Fridenberg,  221  N.  Y.  389,  117 
Village  of  Depue  v.  Bansbach,  N.  E.  611;  Levering  v.  Phila- 
273  111.  574,  113  N.  E.  156;  Per-  delphia,  G.  &  N.  R.  Co.,  8  Watts, 
kins  V.  Maine  Cent.  R.  Co.,  72  &  S.  (Pa.)  459;  Stacey  v.  Ver- 
Me.  95:  Mnllan  v.  Belbin.  130  mont  Cent.  R.  Co.  27  Vt.  39; 
Md.  313,  100  Atl.  384;  Williams  Jones  v.  Miller.— Va.—,  23  S.  E. 
V.  New  Orleans.  M.  &  T.  R.  Co.,  ?5;  Port  of  Seattle  v.  Yesler 
CO  Miss.  689;  Horton  v.  Grand  Estate,  83  Wash.  166,  145  Pac: 
Rapids    &    T.    Ry.    Co.,    199    Mich.  209. 

472,    165    N.    W.    653;    Provote    v. 


§  564]  Eminent  Domain.  2165 

previous  to  the  taking. ^"^  Iii  the  absence  of  such  a 
constitutional  provision,  the  statute  may  authorize  the 
taking  of  the  land  before  payment.  Such  a  statutory 
provision  has  occasionally  been  construed  as  not  trans- 
ferring the  title  before  payment  of  the  award,  but  as 
merely  giving  a  right  of  entry  and  occupation  of  the 
land  as  a  preliminary  to  acquiring  title  by  condemna- 
tion.^ ^  But,  in  the  absence  of  such  a  constitutional* jn-o- 
vision  as  that  referred  to,  the  fact  that  the  cons*'tution 
requires  a  just  or  reasonable  compensation  to  ho  paid 
has  not  usually  been  regarded  as  prohibiting  a  statute 
authorizing  the  passing  of  the  title  before  payment  of 
the  compensation,  provided  there  is  adequate  provision 
for  the  ascertainment  and  collection  of  the  comuensa- 
tion.i- 

By  a  number  of  decisions  it  is  held  that  the  owner 
of  the  land  has  a  lien  for  the  amount  of  the  unpaid 
compensation,  either  by  force  of  the  specific  statutory 
provisions,  or  by  analogy  to  a  vendor's  lien  for  the  pur- 
chase price. ^"     Such  decisions  seem  necessarily  to  imp]v 

10.       Southern    Railway    Co.    v.  Lake     City     Water     &     Electrical 

Birmingham.  S.  &  N.  O.  Ry.  Co.,  Power  Co.   v.   Salt   Lake   City,   24 

130    Ala.    660,    31    So.    509;    Stein-  Utah.   282,   07   Pac.   791. 
hart   V.    Superior    Court    of   Men-  12.     Sweet    v.     Rechel.    159    U. 

docino    County,    137    Cal.    575,    59  S      380;     Haverhill     Bridge     Pro- 

L.    R.    A.    404,    92    Am.    St.    Rep.  prietors     v.     Essex     County,     103 

183,  70  Pac.  629;    Asher  v.  Louis-  Mass.    120;    Appleton    v.    City    of 

ville    &    N.    R.    Co.,    87    Ky.    39L  Newton,  178  Mass.  59  N.   E.  648; 

8    S.    W.    854;    Redman    v.    Phila-  Ballon    v.    Ballou,    78   N.    Y.    .325; 

delphia,    M.    &    M.    R.    Co.,    3;^    N.  Brewster    v.    Rogers    Co.,    169    N. 

J.    Eq.    165;     Martin    v.    Tyler,    4  Y    73,    58    L.    R.    A.    495;    City    of 

N.  Dak.  278,  25   L.  R.  A.   838,   60  Pittsburg,  v.   Scott.  1  Pa.   309. 
N.    W.    392;    Brown   v.    Seattle,    5  13.     Organ     v.    Memphis    &    L. 

Wash.   35.   See   10   Columbia   Law  R.  R.  Co.,  51  Ark.  235.   11   S.  W. 

Rev.   at  p.   245.  96;    New    Bedford    R.    Co.    v.    Old 

11'.     Kennedy     v.     Indianapolis,  Colony    R.    Co.,     120    Mass.    397: 

103    U.    S.    599,    103    L.    Ed.    550;  Drury    v.     Midland     R.    Co.,     127 

Cherokee      Nation      v.      Southern  Mass.    571;     Provolt    v.    Chicago, 

Kansas    R.    Co.,    135    U.    S.    641,  R.    I.    &    P.    R.    Co.,    69    Mo.    6:^3; 

34    L.    Ed.    295;    Fox    v.    Western  Frelinehuysen    v.    Central    R.    Co. 

Pac.    R.    Co.,    31    Cal.    538;    Cush-  of  New  Jersey,  28  N.  J.  Eq.  388; 

man    v.   Smith,   34   Me.    247;    Salt  Jn  re  New  York,  W.  S.  &  B.  Ry. 


2166  Eeal  Pkopebty.  [§  565 

that  the  ownership  of  the  land  passes  by  the  condemna- 
tion proceeding  even  before  payment  of  the  compensa- 
tion, since  one  cannot  usually  have  a  lien  on  his  own 
land. 

§  565.  Cessation  of  public  use.  When  merely  a 
right  of  user  for  the  benefit  of  the  public  is  take'U,  and 
subsequently  such  user  ceases,  the  owner  of  the  land 
has  it  free  from  the  public  burden.^*  Logically,  in 
such  a  case,  the  corporation,  which  acquired  the  right 
of  user  for  one  public  purpose,  having  abandoned  that 
mode  of  user,  could  not  utilize  the  land,  or  authorize  it 
to  be  utilized,  for  a  different  public  purpose,  without 
payment  of  the  value  of  the  right  of  user  for  this  lat- 
ter purpose. ^^  There  appears,  however,  to  be  a  disposi- 
tion occasionally  to  allow  such  change  of  user  subject 
to  the  payment  to  the  owner  of  the  land  of  the  amount 
by  which  the  burden  of  the  new  user  exceeds  that  of 
the  original  user.^'''  If  not  merely  a  right  of  user,  but 
the  "fee,"  as  it  is  expressed,  is  taken,  that  is,  if  the 
ownership  of  the  land  is  acquired  for  a  public  purpose, 
under  the  power  of  eminent  domain,  the  fact  that  it 
ceases  to  be  used  for  that  purpose  does  not  ordinarily 
affect  the  title,  and  the  corporation  which  acquired  the 
property  may  utilize  it  for  other  purposes,  or  may  dis 
pose  of  it,  as  may  be  most  to  its  advantage. ^'^     Tt  may 

Co.,  94  N.  Y.  287:   Lycoming  Gas  Malone    v.    Toledo,    28    Ohio    St. 

&    Water    Co.    v.    Moyer.    99    Pa.  643;      Lucas     v.     Ashland     Light, 

St.    615;    Gillison   v.    Savannah   &  Mill    &    Power    Co.,    92    Neb.    550, 

C.    R.    Co.,    7    Rich.    (S.    C.)    173;  138   N.   W.   761. 
Kittell    V.    Missisquoi    R.    Co.,    56  17.     Frank    v.    Evansville,    &   I. 

Vt.    96;     2    Lewis,    Eminent    Do-  R.    Co.,    Ill    Ind.    132,    12    N.    E. 

main,    §    885.  105;     Sweet    v.    Buffalo,    N.    Y.    & 

14.  See  Heard  v.  Brooklyn,  60  P.  Ry.  Co.,  79  N.  Y.  293;  Eld- 
N.  Y.  242;  Pittsburgh  &  Lake  ridge  v.  City  of  Binghamton, 
Erie  R.  Co.  v.  Bruce,  102  Pa.  120  N.  Y.  309,  24  N.  E.  462; 
23.  Currie  v.  New  York  Transit   Co., 

15.  See  editorial  note  22  Harv.  66  N.  J.  Eq.  313,  58  Atl.  308; 
Law   Rev.    439.  Malone    v.    Toledo,    28    Ohio    St. 

16.  See  Hatch  v.  Cincinnati  &  643;  State  v.  Griftner,  61  Ohio 
Indiana    R.    Co.,   18    Ohio   St.    92;  St.   201.   55   N.   E.   612;    Wyoming 


§  565] 


Eminent  Domain 


2167 


conceivably  occur,  Jiowever,  that  by  force  of  the  statute 
under  which  the  land  is  taken  for  public  use,  a  deter- 
minable fee  only  is  acquired  by  tlie  corporation  v^xercis- 
ing  the  right  of  condemnation,  limited  in  effect  to  .^ndure 
only  so  long  as  the  land  is  utilized  for  the  ^articular 
purpose.  ^^ 


Coal  &  Transport  Co.  v.  Price. 
81  Pa.  St.  1.56;  Chamberlain  v. 
Northeastern  R.  Co.,  41  S.  C. 
399,  44  Am.  St.  Rep.  717.  25  L. 
R.  A.  139,  19  S.  E.  743,  996; 
Seattle  Land  &  Imp.  Co.  v.  Seat- 
tle, 37  Wash.  274,  79  Pac.  780; 
Hays  V.  Walnut  Creek  Oil  Co.. 
75  W.  Va.  263,  Ann.  Cas.  1918A. 
802,    83    S.    E.    900. 

18.     Lithgow     V.     Pearson,     28 
Colo.  App.  70,  135  Pac.  759;   Ben- 


ham  V.  Potter,  52  Conn.  248: 
Chambers  v.  Great  Northern 
Power  Co.,  100  Minn.  214.  110 
N.  W.  1128;  Chicago  &  E.  I.  R. 
Co.  V.  Clapp,  201  111.  418,  66  N. 
E.  223:  MeCombs  v.  Stewart,  40 
Ohio  St.  647;  Lazarus  v.  Morris, 
212  Pa.  St.  128,  61  Atl.  815; 
Canadian  River  R.  Co.  v.  Wichita 
Falls  &  N.  W.  Ry.  Co.,  —  Okla. 
— ,    166    Pac.    163. 


CHAPTEK  XXXI. 

PRIORITIES,   NOTICE  AND  RECORDING. 

§  566.     Priorities  apart  from  recording  acts. 

(a)  As  between  legal  interests. 

(b)  As  between  legal  and  equitable  interests. 

(c)  As  between  equitable  interests. 

§  567.     The  recording  acts. 

(a)  General    considerations. 

(b)  Instruments  capable  of  record. 

(c)  Unauthorized   record    of   instrument. 

(d)  Instruments  not  in  chain  of  title. 

(e)  Instrumsnts   executed    prior   to    acquisition    of 

title, 
(f)     Instruments  executed  after  apparently  parting 

with  title, 
(g)     Instruments  recorded  after  parting  with  title, 
(h)     What  constitutes   recording, 
(i)     Time  allowed  for  recording, 
(j)     Mistakes  by   recording  officer. 
(k)     Index   to   records. 

(1)     Persons  affected  with   notice  by   record, 
(m)     Persons  entitled  to  assert  failure  to  record. 

§  568.  Notice  as  substitute,  for  recording. 

569.  Information  putting  on  inquiry. 

570.  Notice  to  agent. 

571.  Notice  from  possession. 

(a)  General  considerations. 

(b)  Character  of  the  possession. 

(c)  Possession  consistent  with  record  title. 

(d)  Cotenant  in  possession. 

(e)  Joint  possession  or  occupation. 

(f)  Possession  by  tenant  under  lease. 

(g)  Continued    possession   by   grantor. 

§  571.     Notice  from  statements  in  instruments  of  title. 

573.  Actual   and   constructive    notice. 

574.  Purchasers  for  value. 

(a)     Valuable  consideration, 
(b)     Pre-existing  debt. 

(2168) 


§  566]  Priorities  and  Eecording.  2169 

(c)  Adequacy  of  consideration. 

(d)  Notice  before  payment. 

(e)  Notice  after  part  payment. 

(f)  Payment  by  note. 

(g)     Payment  without  acquiring  legal  title. 

§  575.  Purchasers  with  notice  from  purcliasers  without  notice. 

576.  Purchasers  without  notice   from  purchasers  with  notice. 

577.  Purchasers  at  execution  sales. 

578.  Burden  of  proof. 

579.  Lis  pendens. 

§  586.     Priorities  apart  from  recording  acts (a) 

As  between  legal  interests.  "At  common  law,  the  title 
of  a  purchaser  ordinarily  depends,  first,  upon  the  titlL' 
of  his  vendor,  secondly,  upon  whether  the  vendor  has 
transferred  his  title  to  the  purchaser.  If  the  vendor 
had  no  title,  or  if  his  title  was  defective,  it  is  not 
material  that  the  purchaser  paid  the  full  value  of  the 
property,  and  supposed  he  was  acquiring  a  jierfeot 
title.  "^  Were  the  rule  otherwise,  it  is  evideht,  any 
owner  of  property  could  be  divested  of  his  rignts  by  a 
nominal  sale  of  the  property  to  an  innocent  purchaser 
by  one  having  no   rights  therein. 

Applying  this  rule,  it  follows  that  if  B  claiming 
under  a  purported  conveyance  from  A,  has  no  title  be- 
cause the  signature  on  such  conveyance  was  forged, 
one  claiming  under  a  conveyance  from  B  can  assert 
no  title,  even  though  he  paid  value  under  the  supposi- 
tion  that  he   was   acquiring  title   by   B  's  conveyance  ■ 

1.     Langdell,    E«]uity    Pleading,  sada,    54    Ga.    74:     John    v.    Hat- 

§    139.      To    the    same    effect,    see  field,    84     Ind.     75  •,     Vanhoose    v. 

Bispham,  Equity,  §  261;    2  White  Fairchild,  145  Ky.  700,  141    S.  W. 

6  Tudor's  Leading  Cas.  in  Eq.  75;  Plattsmouth  First  Nat.  Bank 
(4th  Am.  Ed.)  Judges'  Hares  v.  Gibson,  GO  Neb.  767,  84  N.  W. 
notes,  at  p.  46;   Vattier  v.  Hinde,  259;    McGregor   v.    Putney,    75    N. 

7  Pet.  (U.  S.)  252,  8  L.  Ed.  675;  H.  113,  71  Atl.  226;  Smith  v. 
Iowa  Land  &  Trust  Co.  v.  U.  Markland,  223  Pa.  605,  72  Atl. 
S.  217  Fed.  11,  133  C.  C.  A.  1:  1047;  Jarman  v.  Farley.  7  Lea 
United  States  v.  Southern  Co.,  18  (Tenn.)  141;  Mortimer  v.  J.u-k- 
Fed.  273;  Winters  v.  Powell.  180  son,  —  Tex.  Civ.  App.  — ,  155  S. 
Ala.  425,  61  So.  96;   Bird  v.  Jones,  W.   341. 

37    Ark.    195;     Comptcni    v.    Cas-         2.     Sampeyreae  v.  United  States, 


2170  -  Real  Property.  [§  566 

Likewise,  since  a  conveyance  which  has  not  been  de- 
livered is  a  nullity,  one  claiming  under  the  grantee 
therein,  though  a  purchaser  for  value  without  notice, 
cannot,  apart  from  estoppel,  assert  any  title  as  against 
the  original  grantor  named,"  ^  and  the  same  principle 
has  been  applied  in  connection  with  a  conveyance  de- 
livered in  escrow,  which  was  handed  by  the  depositary 
to  the  grantee  before  the  satisfaction  of  the  condition.-^ 
Since,  as  just  indicated,  one  who  has  no  title  can- 
not transfer  title  to  another,  one  who  has  transferred 
his  legal  estate  to  one  person  cannot  thereafter  detract 
from  the  effectiveness  of  such  transfer  by  undertaking 
to  transfer  it  to  another.  And  it  is  immaterial  that  the 
later  grantee  paj^s  value  under  the  supposition  that  ho 
is  acquiring  the  property,  that  is,  that  he  is  a  'bona  fide 
purchaser  for  value."  And  as  one  who  has  divested 
himself  of  his  title  cannot  convey  that  title  to  another, 
so  one  claiming  under  him  cannot  do  so.  In  other  words, 
apart  from  statute,  transfers  of  the  legal  title  to  land 
rank,  between  themselves,  according  to  priority  in 
time.  The  very  considerable  departure  from  this  rule, 
resulting  from  the  statutory  provisions  for  the  record- 
ing of  conveyances,  will  be  subsequently  discussed 

(b)  As  between  legal  and  equitable  interests. 


As  between  a  legal  and  an  equitable  interest  in  the 
same  property,  courts  of  equity  have  favored  the  former, 
and  have  in  effect  regarded  the  holder  of  the  legal  title 
as  the  actual  owner,  against  whom  an  equitable  in- 
terest can  be  asserted  only  under  particular  conditions.^ 

7  Pet.   (U.  S.)    222,  8  L.  Ed.  665;  3-4.     Ante,  §  461.     And  see  I-co 

Bird   V.    Jones,   37   Ark.   195;    Mc-  v.    Parker,    171    N.    C.    144,    88    S. 

Ginn    v.    Tobey,    62    Mich.    252,    4  E.  217. 

Am.   St.   Rep.   848,   28   N.  W.   818;  5.     Ante,  §  462. 

Gross  V.  Watts,   206  Mo.   373,  121  6.     The      clearest      elementary 

Am.   St.   Rep.   662,   104   S.   W.   30:  treatment   of  this   subject   is   per- 

Lee  V.   Parker,    171   N.   C.   144,  88  haps    to   be    found    in   Prof.   Mait- 

S.    E.    217;     Smith    v.    Markland,  land's  Lectures   in  Equity,  p.   120 

223    Pa.    605,    132    Am.    St.    Rep.  ci  scg. 

747,   72   Atl.   1047. 


§  566] 


Pkiorities  axd  Recording. 


2171 


As  between  a  legal  title  to  property  aud  an  equit- 
able interest  therein  or  claim  thereto,  the  legal  title,  if 
earlier  in  point  of  time,  takes  priority,  that  is,  as 
one  who  has  transferred  his  legal  title  cannct  affect 
his  grantee  by  subsequently  attempting  to  transfer  the 
legal  title  to  another,  so  he  cannot  affect  his  grantee  by 
subsequently  attempting  to  create  an  equitable  interest 
in  another,  even  though  such  other  pays  value  without 
notice  of  the  prior  transfer  of  the  legal  title." 

If  the  equitable  interest  or  claim  is  first  created, 
the  question  whether  one  who  subsequently  acquires  the 
legal  title  takes  free  from  the  equitable  interest  or  claiui, 
will  ordinarily  depend  on  whether  he  is  a  purchaser  for 
value  without  notice  thereof,  courts  of  equity  refusing 
to  enforce  the  prior  equity  as  against  such  a  purchaser.* 


7.  That  the  defense  of  bona 
fide  purchase  for  value  is  not 
available  against  a  prior  legal 
title  see  Williams  v.  Lambe,  3 
Bro.  C.  C.  264;  Finch  v.  Shaw,  5 
H.  L.  Cas.  905;  Collins  v.  Archer, 
l.Russ.  &  My.  284;  Duncan  Town- 
site  Co.  V.  Lane,  245  U.  S.  308, 
62  L.  Ed.  309;  Hurst  v.  McNeil, 
1  Wash.  (U.  S.)  70;  Curts  v. 
Cisna.  7  Biss.  (U.  S.)  260;  United 
States  V.  Southern  Co.,  18  Fed. 
273;  Hooper  v.  Savannah  &  M. 
R.  Co.,  69  Ala.  529;  Daniel  v. 
Hollingshead,  16  Ga.  190;  Jenkins 
v.  Bodley,  Smedes  &  M.  Ch. 
(Miss.)  338;  Jones  v.  Zollicoffer, 
4  N.  C.  645,  N.  C.  Term  R.  212. 
7  Am.  Dec.  708;  Elstner  v.  Fife. 
32  Ohio  St.  358;  Blake  v.  Hey- 
ward.  Bail  Eq.  (S.  C.)  220; 
Brown  v.  Wood,  6  Rich.  Eq.  (S. 
C.)    155. 

The  defense  of  bona  fide  pur- 
chaser for  value  was,  however, 
available,  under  the  former 
chancery  practice,  as  against  a 
prior  legal  title,  when  the  plain- 


tiff was  invoking  the  auxiliary, 
as  distinct  from  the  concurrent 
or  exclusive,  jurisdiction  of  a 
court  of  equity.  Langdell,  Equity 
Pleading,  §  144;  White  &  Tudor's 
Leading  Cas.  in  Eq.  (8th  Ed.) 
168,  172;  13  Halsbury's  Laws  of 
England,    77. 

8.  See,  e.  g..  Lea  v.  Polk 
County  Copper  Co..  21  How.  (U. 
S.)  493,  16  L.  Ed.  203;  Dean  v. 
Roberts,  182  Ala.  221,  62  So.  44; 
Turner  v.  Wilkinson,  72  Ala. 
367;  Myers  v.  Berven,  166  Cal. 
484,  137  Pac.  260;  Mays  v.  Red- 
man, 134  Ga.  870,  68  S.  E.  738; 
Pitts  V.  Cable,  44  111.  103:  Walker 
V.  Cameron,  78  Iowa.  315.  43  N. 
W.  199;  Winlock  v.  Munday,  156 
Ky.  806,  162  S.  W.  76;  Haas  v. 
Fontenot,  1.12  La.  812.  61  So. 
831:  Beidler  v.  City  Bank  of 
Battle  Creek,  172  Mich.  381,  137 
N.  W.  717;  Conn  v.  Boutwell, 
101  Miss.  353.  58  So.  105:  Har- 
rington v.  Erie  Cotinty  Sav  Bank. 
101  N.  Y.  2r.7.  4  N.  E.  346;  Fles- 
ner   v.   Cooper, — Okla. — ,   134    Pac. 


2172 


Real  Peoperty. 


[§  566 


This  principle,  that  equitable  relief  will  be  denied  as 
against  a  purchaser  for  value  and  without  notice,  who 
has  acquired  the  legal  title,  is  fundamental,  the  court 
in  effect  refusing  to  deprive  him  of  his  right  f)f  prop- 
erty in  such  case  because  it  is  not  unconscientious  for 
him  to  retain  it.  On  the  other  hand  eciuity  regards  as 
unconscientious  the  retention  of  the  right  of  property, 
as  against  a  prior  equity,  by  one  who  acquired  it  witli 
notice  of  the  equity,  or  without  paying  value,  and  will 
give  relief  against  him  accordingly/^ 

The  rule  that  a  purchaser  for  value  without  notice 
will  be  protected  against  a  prior  equity,  and  its  com- 
plementary rule,  that  a  purchaser  with  notice  or  not  for 
value  will  not  be  protected,  applies  regardless  of  the 
character  of  the  equity,  whether,  for  instance,  it  be  an 
express  trust,  an  implied  trust,  a  right  to  set  aside  a 
conveyance,  a  right  to  call  for  a  conveyance,  a  right  to 
reform  a  conveyance,  an  equity  of  redemption,  or  an 
equitable   lien. 


379;  Elwert  v.  Reid,  70  Ore.  318, 
139  Pac.  918,  141  Pac.  540;  Bigley 
■V.  Jones,  114  Pa.  St.  510,  7  Atl. 
54;  High  v.  Batte,  10  Yerg. 
(Tenn.)  335;  Hennessy  v.  Blair, 
107  Tex.  39.  173  S.  W.  871;  Ver- 
mont Marble  Co.  v.  Mead,  85  Vt. 
20,  80  Atl.  852;  Croup  v.  De 
Moss,  78  Wash.  128,  138  Pac. 
fi71;  Cresap  v.  Brown,  69  W.  Va. 
658,  72   S.  E.  751. 

9.  See  e.  g..  Gilley  v.  Denman, 
185  Ala.  561,  64  So.  97;  Gilbert 
V.  Sleeper,  71  Cal.  290,  12  Pac. 
172;'  New  York,  New  Haven  & 
H  R.  Co.  V.  Russell,  83  Conn. 
581,  78  Atl.  324;  Gamble  v.  Hamil- 
ton, 31  Fla.  401,  12  So.  229; 
Finch  V.  Beal,  68  Ga.  594; 
Mason  v.  Mullahy,  145  111.  383, 
34  N.  E.  36;  Walte-r  v.  Cox,  25 
Ind.  271;  Burt  Zaiser  Co  v.  Fin- 
negan,   161   loAva,   631,   143   N.   W. 


486;  Price  v.  Bassett,  163  Mass. 
598,  47  N.  E.  243;  Converse  v. 
Blumrich,  14  Mich.  109,  .90  Am. 
Dec.  230;  Marshall  v.  Hill,  246 
Mo.  1,  151  S.  W.  131;  Veith  v. 
McMurtry,  26  Neb.  341,  42  Si.  W 
6;  Brinton  v.  Scull,  55  N.  J.  Eq. 
747,  35  Atl.  843;  Bellamy  v. 
Andrews,  151  N.  C.  256,  65  S.  E. 
963;  Horgan  v.  Russell,  24  N. 
D.  490,  43  L.  R.  A.  (N.  S.)  1150, 
140  N.  W.  99;  Taylor  v.  Taylor, 
69  Ore.  541,  139  Pac.  852;  Duff 
V.  McDonough,  155  Pa.  St.  10, 
25  Atl.  608;  Bristow  v.  Rosen- 
burg,  45  S.  C.  614,  23  S.  E.  957; 
Sautelle  v.  Carlisle,  13  Lea 
(Tenn.)  391;  Ayres  v.  Jack,  7 
Utah,  249,  26  Pac.  300;  Curtis 
V.  Lunn,  6  Munf.  (Va.)  42; 
Crowley  v.  Byrne,  71  Wash.  444, 
129  Pac.  113;  Parker  v.  Brast, 
45    W.   Va.   339,    32    S.    E.    269. 


§  566]  Priorities  and  Eecoedixg.  21(3 

Claimant  under  quitclaim  deed.     The  question 


whether  one  chiiming  under  a  quitehdiii  deed  may  hold 
as  a  bona  fide  purchaser  for  value  as  agai^ist  prioi* 
equities,  not  based  on  the  recording  act,  has  occacionally 
been  adjudicated  adversely  to  such  claimant. •''''  SucJi 
a  question  is  for  the  most  part  analogous  to  the  question 
hereafter  discussed,^"^  as  to  the  rights  of  such  claimant 
as  against  an  unrecorded  conveyance,  but  when  only 
prior  equities  are  outstanding  it  is  somewhat  difficulty 
to  construe  the  conveyance,  even  though  in  ih<^  form 
of  a  quitclaim  deed,  as  intended  to  convey  the  legal  title 
subject  to  such  outstanding  equities.''^  Consequently, 
there  might  be  stronger  reason  for  protecting  the 
grantee  under  such  a  deed  as  against  a  prior  equity; 
than  as  against  a  prior  unrecorded  deed. 

Subsequent  acquisition  of  legal  title.  Occa- 
sionally it  happens  that  a  purchaser  for  value  does  not 
acquire  the  legal  title  at  the  time  of  his  purcliase,  that 
is,  at  the  time  of  his  payment  of  the  consideration,  but 
acquires  it  at  a  later  time.  He  is  in  such  ca^o  in  the 
position  of  the  holder  of  an  equity  acquiring  the  legal 
title.  If  such  subsequent  acquisition  of  the  legal  title 
is    effected    by   him   without    notice    on    his    part    of    a 

9a.     Derrick  v.   Brown,   66  Ala.  recording    acts,    he    cannot    tlius 

162;    Hannan    v.    Seidentopf,    113  claim  as  against  an  equity  which 

Iowa,    658,    86   N.    W.    44;    Gibson  could    not    be    made    the    subject 

V     Morris    State    Bank,    49    Mont.  of    record,    such    as    a    right    to 

00,     140     Pac.     76;      Hudman     v.  set  aside  the  deed  to  his  grantor 

Henderson,  58  Tex.  Civ.  App.  358,  for    fraud.      Hendricks    v.    Callo- 

124  S.  W.  186.  way,  211   Mo.  536,  111   S.   W.   60; 

9b.     Post,    S    567(m),    notes    14-  Starr    v.    Bartz,    219    Mo.    47,    117 

23.  S.    W.    1125.      If    he    is    to   be    re- 

9c.     See    editorial    note,    10    Co-  garded,   however,   as   an   innocent 

lumbia  Law  Rev.  at  p.  371.  purchaser  for  the  purpose  of  pro- 

In  Missouri  the  vie\y  has  been  tection  against  a  prior  unre- 
adopted  that,  while  a  purchaser  corded  conveyance,  he  should 
holding  under  a  quitclaim  deed  properly,  it  would  seem,  be  so 
may  claim  as  against  a  prior  regarded  for  tl}e  purpose  of  pro- 
unrecorded  deed  as  being  within  tection  against  prior  e'luitics. 
the    protection     afforded     by     Die  under    the    general    rule. 

2  R.  P.— (JL! 


2174 


Real  Pkopebty. 


[^  566 


prior  equity  in  favor  of  another,  it  operates  to  protect 
him  as  against  such  equity.^''  Indeed,  by  perhaps  the 
weight  of  authority,  the  holder  of  a  later  equity,  if  a 
bona  fide  purchaser  thereof  for  value,  may  protect  him- 
self as  against  an  earlier  equity  by  acquiring  the  legal 
title,  even  though  he  does  so  after  he  has  notice  of  the 
earlier  equity,  and  merely  for  the  purpose  of  securing 
priority.^  1  So  it  is  well  settled  in  England  that  a  third 
mortgagee,  who  has  only  an  equitable  title  subsequent 
to  that  of  the  second  mortgagee,  may,  by  acquiring  the 
legal  title  of  the  first  mortgagee,  secure  priority  over 


10.  13  Halsbury's  Laws  of 
England  83;  Bailey  v.  Barnes 
(1894)  1  Ch.  25;  Taylor  v.  Rus- 
sell (1892)  App.  Cas.  244;  Flagg 
V.  Mann,  2  Sumn.  (U.  S.)  486; 
United    States   v.    Detroit   Timber 

6  Lumber  Co.,  131  Fed.  668; 
People  V.  Swift,  96  Cal.  165,  31 
Pac.  16;  Carlisle  v.  Jumper,  81 
Ky.  282;  Flynt  v.  Hubbard,  57 
Miss.  471;  Newton  v.  McLean,  41 
Barb.  (N.  Y.)  285;  Wilson  v. 
Western  North  Carolina  Land 
Co.,  77  N.  C.  445;  Oviatt  v. 
Brown,  14  Ohio  285,  45  Am.  Dec. 
539;  Perkins  v.  Hays,  3  Tenn. 
163,  5  Am.  Dec.  680;  Hill  v. 
Moore,    62    Tex.    610. 

11.  Blackwood  v.  London  Char- 
tered Bank  of  Australia,  L.  R. 
5  Prlv.  Coun.  App.  Ill;  Bailey 
V.  Barnes  (1898)  1  Ch.  25; 
Taylor  v.  Russell  (1892)  App. 
Cas.   244;    Fitzsimmons   v.   Ogden, 

7  Cranch.  (U.  S.)  2,  3  L.  Ed. 
249;  Bayley  v.  Greenleaf,  7  Wheat. 

(U.  S.)  46,  5  L.  Ed.  393;  United 
States  V.  Detroit  Timber  &  Lum- 
ber Co.,  131  Fed.  668  {dictum); 
Wheaton  v.  Dyer,  15  Conn.  307; 
McNary  v.  Southworth,  58  111. 
473;     Campbell    v.    Brackenridge, 

8  Blackf.    (Ind.)    471;    Weston   v. 


Dunlap,  50  Iowa,  185;  Carroll  v. 
Johnston,  55  N.  C.  120;  Gibler 
V.  Trimble,  14  Ohio,  323;  Dueber 
Watch  Case  Mfg.  Co.  v.  Dough- 
erty, 62  Ohio  St.  589,  57 "  N.  E. 
455;  ZoUmau  v.  Moore,  21  Graft. 
(Va.)  313;  Hoult  v.  Donahue,  21 
W.  Va.  294.  See  Smith  Paper 
Co.   V.    Servin,    130   Mass.    511. 

But  that  the  holder  of  the 
later  equity  cannot  thus  protect 
himself  after  notice  of  the  earlier 
equity,  see  Fash  v.  Ravesies,'  32 
Ala.  451;  LouisviUe  &  N.  R.  Co. 
V.  Boykin,  76  Ala.  560;  Paul  v. 
McPherrin,  48  Colo.  522,  21  Ann. 
Cas.  460.  Ill  Pac.  59  (dictum); 
Corn  V.  Sims,  3  Mete.  (Ky.)  391; 
Cline  V.  Osborn,  24  Ky.  L.  Rep. 
511,  68  S.  W.  1083;  Wing  v.  Mc- 
Dowell, Walk.  Ch.  (Mich.)  175; 
Kilcrease  v.  Lum,  36  Miss.  569; 
Doe  V.  Doe.  37  N.  H.  268;  Dean 
V.  Anderson.  .14  N.  J.  Eq.  496; 
Grimstone  v.  Carter.  3  Paige  (N. 
Y.)  421,  24  Am.  Dec.  230;  Golds- 
borough  y.  Turner,  67  N.  C.  412; 
Bush  V.  Bush,  3  Strobh.  Eq.  (S. 
C.)  131,  51  Am.  Dec.  675;  Pillow 
V.  Shannon,  3  Yerg.  (Tenn.)  508 
(semble) ;  Hoover  v.  Donally,  3 
Hen.  &  M.   (Va.)   316   (semble). 


§  566] 


Peiorities  and  Recording. 


2175 


the  second  mortgagee/^''  The  riglit  of  a  bona  fide  pui- 
chaser  thus  to  protect  himself  by  the  subsequent  acquisi- 
tion of  the  legal  title  is,  however,  subject  to  a  qualifica- 
tion, to  the  effect  that  such  acquisition  must  not  iiivolve 
a  breach  of  trust,  as  regards  the  holder  of  the  prior 
equity,  upon  the  part  of  the  person  from  whom  the 
legal  title  is  acquired.^^  AVhether  the  trust  mast  be  an 
express  trust,  and  whether  the  trustee  or  the  purchaser 
must  have  notice  of  the  trust,  appears  not  to  be  definite- 
ly settled.!'' 

■ (c)     As  between  equitable   interests.     As   be- 


tween interests  or  claims  of  a  purely  equitable  character, 
that  is,  enforceable  in  equity  alone,  the  rule,  as  generally 
stated,  is  that  between  equal  equities  priority  of  time 
will  prevail,  that  is,  they  will  rank  according  to  their 
time  of  accrual.!'*  And  the  fact  that  the  later  ecjuity  is 
acquired  without  notice  of  the  earlier  equity  i?  ordi- 
narilv   immaterial  in   this   connection. ^"^     For   instance. 


lla.     Post,  §  639. 

12.  Saunders  v.  Dehew,  2  Vern. 
271;  Pilclier  v.  Rawlins,  L.  R. 
7  Ch.  259;  Bates  v.  Johnson, 
Johns.  (N.  Y.)  304;  Taylor  v. 
London  &  County  Bank  (1901)  2 
Ch.  231;  Mumford  v.  Stohwasser, 
L.  R.  18  Eq.  56.5;  Central  Trust 
Co.  V.  West  India  Improvement 
Co.   169   N.   Y.   314,   62   N.    E.    387. 

13.  See  the  discussion  of  the 
English  cases  bearing  on  the  sub- 
ject in  White  &  Tudor's  Leading 
Cases,  (8th  Ed.)   vol.  2,  at  p.  128. 

14.  Snell,  Equity  (16th  Ed.) 
10;  2  Pomeroy,  Eq  Jur.  §§  683, 
718;  Louisville  &  Nashville  R. 
Co.  v.  Boykin,  76  Ala.  .560; 
Carlisle  v.  Jumper,  81  Ky.  282; 
Wailes  v.  Coopor,  24  Miss.  208; 
Dedeaux  v.  Cuevas,  107  Miss.  7, 
64  So.  844;  Boskowitz  v.  Davis, 
12  Nev.  466;  Wilkes  v.  Harper, 
2    Barb.    Ch.    (N.    Y.)     338;    Wil- 


liams V.  Lewis,  158  N.  C.  571,  74 
S.  E.  17;  Dueber  Watch  Case 
Mfg.  Co.  V.  Dougherty,  62  Ohio 
St.  589,  57  N.  E.  455;  Henry  v. 
Black,  213  Pa.  620,  ^3  Atl.  250; 
454;  Lowther  Oil  Co.  v.  Miller 
Sibley  Oil  Co.,  53  W.  Va.  501,  97 
Am.  St.  Rep.  1027,  44  S.  E.  433. 
Briscoe  v.  Ashby,  24  Gratt.  (Va.) 
"Every  equitable  title  is  in- 
complete on  its  face.  It  is  in 
truth  nothing  more  than  a  title 
to  go  into  chancery  to  have  the 
legal  estate  conveyed,  and  there- 
fore every  purchaser  of  a  mere 
equity  takes  it  subject  to  every 
clog  that  may  lie  on  it,  whether 
he  has  had  notice  of  it  or  not." 
Chew  V.  Barnett,  11  Serg.  &  R. 
(Pa.)    389,  per  Gibson,  J. 

15.  hi  re  Vernon  Ewens  & 
Co.,  33  Ch.  Div.  402;  Boone  v. 
Chiles,  10  Pet.  (U.  S.)  177,  9  L. 
Ed.   388;    Curts   v.   Cisna,   7   Biss. 


2176  Keal  Peopeety,  [<S,  566 

if  one  liaving  an  equitable  interest,  the  legal  title  out- 
standing in  another,  mortgages  his  interest,  aiui  sub 
sequently  undertalves  to  convey  his  whole  interest  to  a 
purchaser,  the  purchaser  can  acquire  only  such  jitterest 
as  is  left  in  the  grantor,  that  is,  the  equities  of  the  mort 
gagee  and  purchaser  are  ranked  according  to  time."''' 
So  if  a  trustee,  having  the  legal  title,  sells,  without 
conveying  the  legal  title,  to  another,  the  equit}^  of  the 
cestui  que  trust  against  him,  being  prior  in  time  to  that 
of  the  purchaser,  will  be  preferred.'"  But  this  general 
rule  of  protection  for  the  earlier  equity  applies  •  only 
when  the  equities  are,  in  other  resjiects  than  'hat  of 
time,  equal  one  to  the  other,  and  such  equality  is  lacking 
if  the  holder  of  the  earlier  equity,  by  his  fraudulent  oi 
negligent  statements  or  conduct,  misled  the  later  in- 
cumbrancer.'^ Thus  the  holder  of  a  prior  equity,  who 
expressly  disclaimed  any  such  equity,  and  by  such  dis- 
claimer induced  another  to  pay  value  for  an  equitable 
interest  in  the  property,  could  not  assert  his  equity  as 
against  the  later  equity,  the  former  equity  being,  by 
reason  of  his  misconduct,  inferior  to  the  latter.*'-'  And 
it  is  upon  such  a  theory  that  the  equity  of  a  vendor's 
lien  has  occasionally  been  postponed  to  the  subsequent 

(U.    S.)    260;    Overan    v.    Taylor,  733;    Lowther    Oil    Co.    v.    Miller- 

99    Ala.    12,    11    So.    738;    Taylor  Sibley  OU  Co.,  53  W.  Va.  501,  97 

V.    Weston,    77    Cal.    534,    20    Pac.  Am.   St.  Rep.   1027,  44   S.   E.  433. 

62;    Johnson   v.   Hayard,    74   Neb.  16.     Phillips    v.    Phillips,    4    Do 

157,    5   L.    R.   A.    (N.    S.)    112,    i2  G.,   F.   &   J.    208,   per   Lord    W^c.-^t- 

Ann.    Cas.    800,    103    N.    W.    1058,  bury. 

107  N.  W.  384;   Jenkinson  v.  New  17.     Pinkett  v.  Wright,  2  Hare, 

York    Finance    Co.,    79    N.    J.    Eq.  120. 

247,  82  Atl.   36;    Peabody  v.  Fen-  18.     Rice  v.   Rice,  2   Drew.   73; 

ton,    3    Barb.    Ch.     (N.    C.)     451;  Heyder    v.    Excelsior    Building    & 

Bonelli    v.    Burton,    61    Ore.    429,  Loan  Ass'n,  42  N.  J.  Eq.  403,  59 

123  Pac.  37;    LaBelle  Coke  Co.  v.  Am.    Rep.    49,   8    Atl.    310;    Hume 

Smith,   221  Pa.   642,  70   Atl.   894;  v.  Dixon,  37  Ohio  St.  66;   Wilson 

Craig  V.  Leiper,  2  Yerg.    (Tenn.)  v.    Hicks,    40    Ohio    St.    418;     St. 

193,    24    Am.    Rep.    479;    National  Johnsbury  v.   MorriU.   55   Vt.   165. 

Oil   &  Pipe   Line   Co.    v.    Teel,   95  19.     2  Pomeroy,  Eq.  .Jur.  §§  686, 

Tex.    586,    68    S.    W.    979;    Wilson  779-782. 
V.   Morrell,   5   Wash.   654,   32   Pac. 


§  566]  Petoeities  axd  Recording.  2177 

equity  of  one  who  purchased  in  ignorance  of  the  li^n,  the 
conduct  of  the  lienor  in  failing  to  take  a  mortgage  to 
secure  his  claim,  or  otherwise  to  make  the  existence  oi 
the  lien  a  matter  of  record,  being  regarded  as  involving 
an  element  of  negligence,  and  as  consequently  snaking 
his  equity  inferior  to  that  of  the  subsequent  purchaser.^'* 
In  England  such  postponement  of  the  earlier  to  the 
later  equity  quite  frequently  occurs  by  reason  of  the 
negligent  conduct  of  the  holder  of  the  prior  equity  in 
not  obtaining  the  title  deeds  or  in  not  retaining  posses- 
sion of  them.-^  This  can  obviously  not  happen  in  thi"? 
country,  where  the  possession  or  non  possession  of  the 
title  deeds  possesses  no  significance.  Such  c?ses  of 
postponement  of  the  earlier  to  the  later  equity  by 
reason  of  the  misleading  conduct  of  the  holder  of  the 
earlier  equity  might  usually,  if  not  invariably,  ir  seems, 
be  regarded  as  applications  of  a  doctrine  analogous  to 
that  of  estoppel  in  pais?'- 

The  general  rule  being,  as  above  stated,  that  as 
between  equal  equitable  interests  or  claims  the  one 
prior  in  time  will  prevail,  a  qualification  of  this  rule  has 
been  suggested  by  high  authority,  to  the  eliect  that  the 
equities  should  be  against  the  same  person,  and  that 
if  against  different  persons,  the  subsequent  equity 
should  be  protected  in  favor  of  one  who  acquires  it 
bona  fide  for  value,  just  as  if  it  were  a  legal  title.  In 
other  words,  that,  as  a  purchaser  for  value  of  a  legal 
title,  without  notice  of  an  equity  in  favor  of  another, 
takes  free  of  the  equity,  so  a  purchaser  for  valu'^  of  an 
equitable  title,  without  notice  of  a  ''subequity"  in 
favor  of  another,  should  take  free  from  such  sub- 
equity.-^^'^^     Under  the  view  suggested,  for  instance,  if 

20.  Bayley      v.      Greenleaf,      7       Leading    Cases     in     Equity     (8th 
Wheat.    (U.    S.)    46,   57,   5   L.   Ed.       Ed.)   104  et  seq. 

39:v,    Hume  v.  Dixon,  37  Ohio  St.  22.     See  Mr.'  Ewart's   ingenious 

66;   Campbell  v.  Sidwell,  61    Ohio  and  suggestive   discussion,   in   his 

St.    179,    55   N.    E.    609.     See   Cox  work    on    Estoppel,   pp.    251-291. 

V.  Romine,  9   Gratt.    (Va.)    27.  23-24.     Professor    J.     B.     Ames, 

21.  See     2     White     &    Tudor's  in    1    Harv.    Law    Rev.    at    p.    8, 


2178  Beal  Property.  [^  566 

A,  having  an  eqnitable  interest,  such  as  an  equity  of 
redemption,  or  the  beneficial  interest  under  a  trust, 
agrees  to  hold  his  interest  for  the  benefit  of  B,  or,  as 
having  acquired  such  interest  from  B  by  fraud,  holds  it 
under  a  constructive  trust  for  B,  and  A  subsequently 
conveys  his  equitable  interest  to  a  purchaser  for  value 
without  notice  of  B's  claim,  the  latter  would  take  free 
from  such  claim.  In  such  a  case  the  personal  right  in 
favor  of  B  against  A  to  enforce  a  trust  is  not  in  its 
nature  exclusive  of  a  like  personal  right  in  favor  of  the 
purchaser  against  the  legal  owner,  and  consequently 
there  would  seem  to  be  no  reason  that  the  former, 
though  earlier  in  time,  should  exclude  the  latter,  though 
such  rights  against  the  same  person  in  regard  to  the 
same  land  are  necessarily  exclusive  one  of  the  other,  and 
consequently  it  is  proper  to  prefer  the  one  which  was 
first  acquired.  This  view,  it  has  been  rem.arked,^^  con- 
forms in  principle  with  the  doctrine,  more  generally 
accepted  in  this  country,  that  the  assignee  of  a  chose  in 
action,  for  value  and  without  notice  of  equities  in  a 
third  person,  takes  free  of  such  equities.^*^  It  has, 
however,  been  criticized,  and  is  probably  contrary  to  the 
weight  of  judicial  authority.-'^ 

It  has  been  not  infrequently  stated  that  if  the  hold- 
er of  the  subsequent  equity,  having  acquired  it  for 
value  and  without  notice  of  the  prior  equity,  has  the 
"best  right"  to  call  for  the  legal  estate,  he  is  to  be  pro- 
tected as  if  he  had  actually  acquired  such  estate.^* 
"It  has  accordingly  been  held  that  if  a  purchaser  for 
value  takes  an  equitable  title  only,  or  omits  to  gt-t  in  an 

Lectures   on   Legal   History   at   p.  Enforcement  of  Decrees  in  Equity, 

263.     See  Editorial   notes,   12   Co-  116-124,  144. 

lumbia    Law    Rev.,    pp.     155-158;  28.     Wilkes     v.     Bodington,     2 

24    Harv.    Law   Rev.    at    p.    490.  Vern.     599;     Wilmot    v.    Pike,     5 

25.  Editorial  note,  24  Harv.  Hare,  14;  Hume  v.  Dixon,  37  Ohio 
Law   Rev.   at  p.  491.  St.   66;    Dueber  Watch  Case   Mfg. 

26.  Post,  §  630(b).  Co.    v.    Dougherty,    62    Ohio    St. 

27.  See  article  by  Professor  589,  596,  57  N.  E.  455;  St.  Johns- 
Thaddeus  Kenneson,  23  Yale  Law  bury  v.  Morrill,  55  Vt.  165;  Pres- 
Journ.  at  p.  205  et  seq.;  Huston,  ton  v.  Nash,  76  Va.  1. 


§  566]  Priorities  and  Recording.  2179 

outstanding  legal  estate,  and  a  subsequent  purchaser 
for  value  without  notice  procures,  at  the  time  of  his 
purchase,  the  person  in  whom  the  legal  title  is  vested 
to  declare  himself  a  trustee  for  him,  or  even  to  join  as 
party  in  a  conveyance  of  the  equitable  intere.-«^t,  (al- 
though he  may  not  formally  convey  or  declare  a  trust 
of  the  legal  estate),  still  the  subsequent  purchaser 
gains  priority.  "^'^  So  a  bona  fide  purchaser  is  pro- 
tected as  against  a  prior  equity,  if  he  has  the  legal 
title  conveyed  to  another  instead  of  to  himself,  he  having 
in  such  case  the  right  to  call  for  a  conveyan.'o  of  the 
legal  title.''^  Under  what  other  circumstances  this  doe 
trine  of  the  ''best  right"  might  become  applicable  in 
favor  of  the  holder  of  the  subsequent  equity  does  not 
clearly  appear  from  the  cases.^^  In  one  case  in  this 
country  it  was  regarded  as  protecting  a  subsequent  pur- 
chaser as  against  a  prior  equity  by  reason  of  tiie  fact 
that  such  purchaser  had  a  right,  under  his  coTitract, 
to  demand  a  conveyance.^^ 

Even  though  a  bona  fide  purchaser  has  not  acquired 
the  legal  title,  he  stands  in  the  same  position  a?  if  ho 
had  done  so,  as  regards  a  prior  equity,  if  he  has-  power 
to  acquire  the  legal  title  by  performing  some  act,  without 
ai'y  action  on  the  part  of  the  holder  of  such  title,  as, 
for  instance,  when  he  is  given  an  ex])ress  and  irrevoca- 
ble power  to  transfer  the  property  to  himself  or 
another.''^ 

29.  Stirling,    L.    J.,    in    Taylor      426. 

V.    London    and    County    Banking  31.     See     2     White     &     Tudor, 

Company     (1901)     2     Ch.     at     p.  Leading   Cases    in    Eq.    (8th    Ed.) 

261.  at  p.  151. 

30.  Ames,  Cases  on  Trusts  32.  Preston  v.  Nash,  76  Va.  1. 
(2nd  Ed.)  286;  Willoughby  v.  In  Buck  v.  Winn.  11  R  Men. 
Willoughby,  1  Term  Rep.  76:^.;  (Ky.)  323,  it  was  held  that  a 
Kinicott  v.  Board  of  Snp'rs  of  purchaser  at  sheriff's  sale,  before 
Wayne  County,  16  Wall.  (U.  S.)  procuring  a  deed,  had  such  an 
452,  21  L.  Ed.  319;  Stokes  v.  "inchoate  legal  title"  that  he  was 
Riley,  121  111.  166,  11  N.  E.  877.  entitled  to  protection  as  a  bona 
Compare,     Seacoast      R.     Co.     v.  fjilc  purchaser. 

Wood,    65    N.    J.    Eq.    530,    56    Atl.  33.     Dodds  v.   Hills,   2   H.   &   M. 

337,  criticized  17  Harv.  Law  Rev.      297.      See    Brewster    v.    Sime,    42 


2180  Real  Peopeety.  [§  567 

It  has  been  decided,  in  one  state,  that  as  between 
equal  equities,  if  the  holder  of  the  later  equity  was  a 
bona  fide  purchaser  for  value  and  has  actually  acquired 
possession  as  such  and  made  improvements,  he  will  bo 
protected  as  against  the  prior  equity.^"^  Such  a  doc 
trine  does  not  appear  to  be  generally  recognized."-"^ 

§  567.  The  recording  acts (a)  General  consider- 
ations. The  rule  first  above  referred  to,  that,  as  between 
conveyances  of  the  legal  title,  the  first  in  time  nnist  pre- 
vail, has  been  entirely  changed  by  the  recording  nets, 
which  exist  in  every  state,  and  wdiich  provide  in  etfeet 
that  a  conveyance  or  mortgage  of  land,  and  frequently 
any  other  instrument  affecting  land,  shall  not,  as  against 
a  subsequent  conveyance  or  mortgage  in  favor  of  a 
purchaser  for  value,  be  valid,  unless  it  is  fiWl  for 
record  in  a  public  record  office.  The  requirement  of 
record  has  almost  invariably  been  regarded  as  intendoa 
for  the  protection  of  subsequent  purchasers  only,  so  that 
the  failure  to  record  the  instrument  in  no  way  aii"e?ts  the 
passing  of  title  as  between  the  ]:)arties  thereto.-^''     The 

Cal.   i;^,9;    Professor  Ames'  Essay,  Cas.    1916C,    943,   169    S.   W.    253; 

1   Harv.   Law    Rev.    at   p.    5,   Lee-  Warnock  v.  Harlow,   96   Cal.   298, 

tures  on  Legal  History,  257.  31  Am.  St.  Rep.  209,  31  Pac.  106; 

34.  St.  .Johnsbury  v.  Morrill.  Licata  v.  De  Corte,  50  Fla.  5G?., 
55  Vt.  165.  See  United  States  39  So.  58;  Lytle  v.  Black,  107  Ga. 
V.  Detroit  Timber  &  Lumber  Co.,  386,  33  S.  E.  414:  Gibson  v. 
131    Fed.    668,    678.  Brown,  214  111.  330,  73  N.  E.  578: 

35.  In  PhiHips  v.  Phillips,  4  Shirk  v.  Thomas,  121  Ind  147.  16 
De  G.  F.  &  J.  208,  which  is  Am.  St.  Rep.  381,  22  N.  E.  976; 
usually  referred  to  as  the  leading  Smith  v.  Noble,  174  Ky.  151,  191 
case  on  the  law  of  bona  fide  S.  W.  641,  Willet  v.  Andrews,  106 
purchaser.  Lord  Westbury  dis-  La.  319,  30  So.  883;  Lawry  v.  Wil- 
tinctly  overruled  the  argument  liams,  13  Me.  281;  Palmer  v. 
that  the  possession  of  the  holder  Paine,  9  Gray  (Mass.)  56;  Van 
of  the  subsequent  equity,  the  de-  Husan  v.  Heames,  96  Mich.  504 
fendant,  gave  him  any  protection  56  N.  W.  22;  McCamant  v.  Pat 
as  against  the  prior  equity.  terson,  39  Mo.  100;  Ames  v 
And  see  editorial  note,  11  Colum-  Robert,  17  N.  M.  609,  131  Pac 
bia  Law  Rev.  555.  994;    Wood    v.    Chap  in,    13    N.    Y 

36.  Western  Tie  &  Timber  Co.  509,  67  Am.  Dec.  62;  McBrayer 
V.    Campbell,    113    Ark.    570,    Ann.  v    Harrill,    152    N.    C.    712,    68    S 


§  567] 


Peioeities  and  Eecordtxg. 


2IS1 


grantor  merely  retains,  by  force  of  the  statute,  a  power 
to  defeat  the  conveyance,  if  not  recorded,  by  a  subse- 
quent conveyance  to  another.^' 

The  construction  placed  by  the  courts  ujvju  the 
recording  acts  has  been  in  effect  to  protect  a  subsequent 
purchaser  as  against  a  prior  instrument,  if  he  pays 
value  in  ignorance  of  such  instrument,  and  to  n-ake  the 
record  of  an  instrument  in  accordance  with  the  act 
equivalent  to  notice  to  the  subsequent  purchase]-  of  the 
existence  and  contents  of  the  instrument,  irrespective  of 
whether  he  actually  examines  the  records  so  as  to  ob- 
tain such  information.^ '^'^  And  the  record  is  notice  not 
only  of  the  instrument  and  of  the  facts  stated  tlierein, 
but  also  of  any  other  matters  as  to  which  the  necessity 
of  an  inquiry  is  suggested  by  statements  in  the 
instrument.-^^  The  practical  effect  of  the  acts  is  that  an 
intending  purchaser  of  land  may,  by  reference  to  thc- 


E.  204;  McLaughlin  v.  Ihmsen, 
85  Pa.  St.  3G4;  Wilkins  v.  Mc- 
Corkle,  112  Tenn.  688,  80  S.  W. 
834;  Raines  v.  W^alker,  77  Va. 
02;  Whalon  v.  North  Platte 
Canal  &  Colonization  Co.  11  Wyo. 
313,   71   Pac.   995. 

In  Maryland  the  legal  title  does 
not  pass  until  recorded.  Nickel 
V.  Brown,  75  Md.  172,  23  Atl. 
736;  West  v.  Pusey,  113  Md.  569. 
77  Atl.  973.  And  occasionally  re- 
fording  has  been  regarded  as 
necesary  to  give  validity  to  a 
particular  class  of  conveyance, 
as  one  by  a  married  woman, 
Rorer's  Heirs  v.  Roanoke  Nat. 
Bank,  83  Va.  589,  4  S.  E.  820. 

37.  See  article  by  Professor 
Wesley  N.  Hohfield,  26  Yale  Law 
Jonrn.   at   p.   756. 

37a.  2  Pomeroy.  Eq.  Jur.  § 
649;  2  White  &  T.  Lead.  Cas. 
Eq.  Amer.  notes,  203;  Webb,  Rec- 
ord of  Title,   §   4. 


38.  Crawford  v.  Chicago,  B.  & 
T.  R.  Co.,  112  111.  314;  Mettart 
V.  Allen,  139  Ind.  644,  39  N.  E. 
239;  Loser  v.  Plainfield  Sav. 
Bank,  149  Iowa,  672,  37  L.  R.  A. 
(N.  S.)  1112,  128  N.  W.  1101; 
Taylor  v.  Mitchell,  58  Kan.  194, 
48  Pac.  859;  Hickman  v.  Green, 
123  Mo.  165,  29  L.  R.  A.  39,  22 
S.  W.  455,  27  S.  W.  440;  Carter 
V.  Leonard,  65  Neb.  670,  91  N. 
W.  574;  Sweet  v.  Henry,  175  N. 
Y.  268,  67  N.  E.  574;  Cook  v. 
Caswell,  81  Tex.  678,  17  S.  W. 
385;  Passumpsic  Sav.  Bank  v. 
Buck,  71  Vt.  190,  44  Atl.  9:]; 
Flanary  v.  Kane,  102  Va.  547, 
46  S.  E.  312,  681;  Smith  v. 
Owens,  63  W.  Va.  60,  59  S.  E. 
762. 

In  Georgia  the  record  of  a 
voluntary  deei  is  not  effective 
to  give  priority  as  again-t  a 
subsequent  purchaser,  it  neing 
necessary     that    he    have     noiice 


2182  Real  Property.  [§  567 

record,  determiiie  whether  his  vendor  has  previously 
disposed  of  any  interest  in  the  land  and  also  ascertain 
both  the  person  from  whom  his  vendor  obtained  the  land, 
and  whether  such  jDcrson  had  disposed  of  any  interest  to 
a  person  other  than  such  vendor,  and  so,  iu  the  case  of 
each  of  the  successive  owners  of  the  land,  determine 
whether,  during  the  period  of  his  ownership,  he  created 
any  interest  not  vested  in  the  present  vendor.'**  The 
series  of  successive  conveyances  by  virtue  of  which  the 
vendor  or  another  asserts  ownership  of  the  land  is  fre- 
quently referred  to  as  his  or  the  "chain  of  title,"  each 
conveyance  constituting,  figuratively  speaking,  one  link 
in  the  chain. 

(b)    Instruments  capable  of  record.     Since  tlie 

effect  of  the  record  of  an  instrument  as  charging  a 
subsequent  purchaser  with  notice  thereof  is  solely  by 
reason  of  the  statute  to  that  effect,  it  is  necessarily 
confined  to  such  instruments  as  the  statute  authorizes 
to  be  recorded.*"  And  it  is  obviously  in  the  case  of 
such  instruments  only  that  the  failure  to  record  car. 
affect  injuriously  a  person  asserting  a  claim  or  benefit 
under  the  instrument.'*^  The  statutes,  however,  espe- 
cially the  later  ones,  are  usualh'  quite  inclusive  in  this 
regard ;    and  the  tendency  of  the  courts  is  to  give  them  an 

otherwise.       Fowler     v.     Weldrip.  1019;   Sjoblom  v.  Mark,  103  Minn. 

10    Ga.    350;    Black    v.    Thornton.  193,  15  L.  R.  A.   (N.  S.)    1129,  14 

31    Ga.    641;    Avera    v.    Southern  Ann.    Cas.    125,    114    N.    W.    746; 

Mortg.   Co.,    147   Ga.    24,   92    S.   E.  Riddle  v.  Fellows,  42  N.  H.  309; 

533.  Sexton   v.   Elizabeth  City,    169   N. 

39.  A  purchaser  is  bound  to  C.  385,  86  S.  E.  344;  Burnham 
examine  the  records  back  to  the  v.  Chandler,  15  Tex.  441;  Pringle 
time  of  the  acquisition  of  title  v.  Dunn,  37  Wis.  449,  19  Am. 
by  his  vendor,  not  merely  to  Rep.  772;  Prentice  v.  Duluth 
the  time  of  the  record  of  the  Storage  &  Forwarding  Co.,  58 
conveyance    by    which     the    title  Fed.    437,    7    C.    C.    A.    293. 

was    acquired.      Higgins    v.    Den-  41.     Brown  v.    Butler,    87    Va. 

nis,  104  Iowa,  605,  74  N.  W.   9.  621,   13    S.    E.  71;    Hutchinson   v. 

40.  Williams  v.  Smith.  128  Ga.  Bramhall,  42  N.  J.  Eq.  372,  7 
306,    57    S.   E.    801;    Mack   v.    Mc-  Atl.    873. 

Intosh,     181    111.    633,    54     N.    E. 


§  567] 


Priorities  and  Recording. 


2183 


efficient  operation,  by  regarding  them  as  authorizing 
the  record  of  ahnost  every  instrument  of  a  character  to 
affect  the  title  to  land.  And  so,  though  by  some  of  the 
earlier  decisions  the  record  of  an  equitable  title  v/as  not 
regarded  as  sufficient  to  affect  a  subsequent  purchaser 
with  notice  thereof,  the  rule  is  now  generally  settled 
otherwise,  sometimes  by  express  statutory  provision, 
and  consequently  the  purchaser  takes  subject  to  an 
instrument,  creating  or  transferring  an  equity,  which 
has  been  recorded."*^  A  written  contract  for  the  sale 
of  land,  of  which  specific  performance  would  be  decreed, 
is  ordinarily  regarded  as  within  the  recording  acts, 
sometimes  by  reason  of  its  express  mention.^'^  But  oc- 
casionally the  record  of  such  a  contract  has  been  re- 
garded as  nugatory  because  unauthorized  by  the  stat- 
ute.^*    In  so  far  as  an  equity  is  of  a  character  which 


42.  O'Neal  v.  Seixas,  85  Ala. 
80;  Fish  v.  Benson,  71  Cal.  428, 
12  Pac.  454;  Bailey  v.  Myrick, 
50  Me.  171;  General  Ins  Co.  of 
Maryland  v.  United  States  Ins. 
Co.  of  Baltimore,  10  Md.  517,  69 
Am.  Dec.  174;  Edwards  v.  Mc- 
Kernan,  55  Mirh.  520,  22  N.  W. 
20;  Wilder  v.  Brooks,  10  Minn. 
50,  88  Am.  Dec.  49;  Hunt  v.  .lohn- 
son,  19  N.  Y.  279;  Tarbell  v. 
West,  86  N.  Y.  280;  Russell's 
Appeal,  15  Pa.  319;  Smith  v. 
Neilson,  13  Lea  (Tenn.)  461; 
Herrington  v.  Williams,  31  Tex. 
448. 

A  restrictive  covenant,  not  con- 
tained in  an  instrument  of  con- 
veyance, has  in  one  state  been 
held  not  to  be  entitled  to  record. 
Sjoblom  v.  Mark,  103  Minn.  193, 
15  L.  R.  A.  (N.  S.)  1129,  14 
Ann.  Cas.  125,  114  N.  W.  746. 
Contra,  Wootton  v.  Seltzer,  83 
N.  J.  Eq.  163,  90  Atl.  701.  84  N. 
J.  Eq.  207,  93  Atl.  1087;  Bradley 
v  Walker,  138  N.  Y.  291.  .",3  N. 
E.    1079 


43.  De  Wolf  v.  Pratt,  42  111. 
198;  Case  v.  Bumstead,  24  Ind. 
429;  Chesbrough  v.  Vizard  In- 
vestment Co.,  156  Ky.  149,  160 
S.  W.  725  (option  contract); 
Bailey  v.  Coffin,  115  Me.  495,  99 
Atl.  447  (as  creating  trust) ; 
South  Baltimore  Harbor  &  Im- 
provement Co.  of  Anne  Arundel 
County  v.  Smith,  85  Md.  537,  37 
Atl.  27;  Weisberger  v.  Wisner. 
55  Mich.  246,  21  N.  W.  331; 
Thorsen  v.  Perkins,  39  Minn.  420, 
40  N.  W.  557;  McBee  v.  O'Con- 
nell,  16  N.  M.  469,  120  Pac.  734; 
Kirven  v.  Wilds,  98  S.  C.  403,  82 
S.  E.  673;  Camp  Mfg.  Co.  v. 
Carpenter.  112  Va.  79,  70  S.  E. 
497;  Bernard  v.  Benson,  58  Wash. 
191,  137  Am.  St.  Rep.  1051,  108 
Pac.  439;  Conaway  v.  Sweeney,  24 
W.  Va.  64j3.  An  assignment  of  the 
contract  of  sale  has  also  been  re- 
garded as  within  the  statute. 
Salisbury  v.  La  Fitto,  57  Colo. 
358,    141    Pac.    484 

44.  Kendrick  v.  Colyar,  143 
Ala.    597.    42    So.    110;     (^hurchill 


218J:  Eeal  Property.  [<§  567 

does  not  admit  of  record,  such  as  a  resulting  tfust,  an 
equity  to  reform  an  instrument,  or  to  set  aside  an  in- 
strument, the  fact  that  the  equity  does  not  appear  of 
record  can  obviously  not  affect  the  right  to  assert  it  as 
against  a  subsequent  purchaser.  A  subsequent  pur- 
chaser acquiring  the  legal  title  for  value,  however,  if 
without  notice  of  the  equity,  would  take  free  therefrom. 

Leases,  other  than  those  for  brief  periods,  are 
ordinarily  within  the  recording  laws,  so  that  the  record 
thereof  will  operate  as  notice  to  a  subsequent  purchaser, 
and  the  failure  to  record  it  may  render  it  nugatory  as 
to  snch  purchaser,"*^ 

In  many  states  the  statute  requires  that  a  power  of 
attorney  shall  be  recorded  in  order  to  render  the  record 
of  a  conveyance  made  under  such  power  effective  as 
notice  to  subsequent  iDurchasers,^**  In  the  absence  of 
such  statutory  requirement  there  is  no  necessity,  it 
seems,  of  recording  the  power,  since  the  conveyance  puts 
the  purchaser  on  inquiry  as  to  the  authority  of  the  agent 
or  attorney.^^  The  revocation  of  a  power  of  attorney 
is  also  frequently  required  to  be  recorded  in  order  to 
be  valid,  if  the  power  itself  has  been  recorded. ^^ 

(c)     Unauthorized  record   of   instrument.     In 


order  that  the  record  of  an  instrument  shall  operate  as 
constructive  notice  to  subsequent  purchasers,  the  form 
of  the  instrument  must  be  such  that  its  record  is  au- 
thorized.    Consequently,  if  it  is  not  duly  executed,^'-'  or 

V.  Little,   23  Ohio   St.   301;    First  46.     1    Stimson's   Am.    St.    Law, 

Nat.    Bank    of    Stevens    Point    v.  S    1624(10),   1670. 

Chafee,    98    Wis.    42,    73    N.    W.  47.     See  Anderson  v.  Dugas,  29 

318.  Ga.    440;    Valentine    v.    Piper,    22 

45.     Jones    v.     Marks,    47    Cal.  Pick.     (Mass.)     85.    33    Am.    Dec. 

242;    Commercial  Bank  v.  Pritch-  715;     Wilson    v.    Troup,    2    Cow. 

ard,    126    Cal.    600,    59    Pac.    130;  (N.  Y.)    195,  14  Am.  Dec.  458. 

Kronfeld  v.  Missal,  87  Conn.  491,  48.     1    Stimson's   Am.    St.   Law, 

89    Atl.    95;    Toupin    v.    Peabody  §   1673. 

162    Mass.    473,    39    N.    E.     280;  49.     Racouillat     v.      Sansevain, 

Lucas    V.    Sunbury    &    E.    R.    Co.,  32  Cal.  376;    Carter  v.  Champion, 

32  Pa.  St.  458;   Bova  v.  Norigian,  8    Conn.    549,    21    Am.    Dec.    695; 

28   R.  1.   319,   67   Atl.   326.  Parret  v.   Shaubhut,  5  Minn.   323 


§  567] 


PeIOEITJES    and    liECOEDING. 


2185 


if  it  is  not  acknowledged  or  certified  as  requiired  lay 
law,^^  its  record  does  not  operate  as  constructive  notice 
to  subsequent  purchasers.  Moreover,  in  order  to  give 
priority  as  against  a  subsequent  purchaser,  the  instru- 
ment must  describe  the  land  with  sufficient  accuracy  to 
enable  one  examining  the  record  to  identify  the  land."'^ 
The  view  has  usually  been  accepted  that  if  a  subse- 
quent purchaser  actually  sees  the  record  of  a  prior 
instrument,  although  it  was  not  entitled  to  be  recorded, 
he  is  to  be  regarded  as  charged  with  notice  ihoreof.^^' 


(Gil.  258),  80  Am.  Dec.  424; 
Rainey  v.  Lamb  Hardwood  Lum- 
ber Co.,  91  Miss.  690,  45  So. 
367;  Van  Thorniley  v.  Peters,  26 
Ohio  St.  471;  Pringle  v.  Dunn, 
37   Wis.   449,   19   Am.   Rep.    772. 

50.  McDonald  v.  Norton,  123 
Ark.  473,  185  S.  W.  791,  1199; 
Herndon  v.  Kimball,  7  Ga.  4;!2, 
50  Am.  Dec.  406;  Donalson  v. 
Thomason,  137  Ga.  848,  74  S.  E. 
762;  Harris  v.  Reed.  21  Idaho, 
364,  121  Pac.  780;  Sinclair  v. 
Gunzenhauser,  179  Ind.  78,  98  N. 
E.  37,  100  N.  E.  376;  Blackman 
V.  Henderson,  116  Iowa,  578,  56 
L.  R.  A.  902,  87  N.  W.  655: 
Ferrell  v.  Childress,  172  Ky.  760, 
189  S.  W.  1149;  Cockey  v.  Milne's 
Lessee,  16  Md.  200;  Graves  v. 
Graves,  6  Gray  (Mass.)  391; 
Tinnin  v.  Brown,  98  Miss.  378, 
Ann.  Cas.  1913A,  1081,  53  So. 
780;  Bishop  v.  Schneider,  46  Mo. 
472,  2  Am.  Rep.  533;  Bradley  v. 
Walker,  138  N.  Y.  291,  .•?3  N.  E. 
1079;  Indian  Land  &  Trust  Co. 
V.  Scott,  —  Okla.  — ,  158  Pac. 
1164;  Fleschner  v.  Sumpter,  12 
Ore.  161,  6  Pac.  506;  Heister's 
Lessee  v.  Fortner,  2  Binn.  (Pa.) 
40,  4  Am.  Dec.  417;  Phillis  v. 
Gross,  32  S.  D.  438,  143  N.  W. 
37.!;    Childers    v.    Wm.    H.    Cole- 


man Co.,  122  Tenu.  109,  118  S. 
W.  1018;  Playden  v.  MoffaJ;t,  74 
Tex.  647,  15  Am.  SL  Rep.  836, 
12  S.  W.  820;  Raines  v.  Walker, 
77  Va.  92;  South  Penn.  Oil  Co. 
V.  Blue  Creek  Development  Co., 
77  W.  Va.  682,  88  S.  E.  1029; 
Girardin  v.  Lampe,  58  Wis.  267, 
16    N.    W.    614. 

51.  Evans  v.  Russ,  131  Ark. 
335,  198  S.  W.  518;  Chamberlain 
V.  Bell,  7  Cal.  292,  68  Am.  Dec. 
260;  Touchstone  v.  Ford,  146  Ga. 
797,  92  S.  E.  524;  Thorpe  v. 
Helmer,  275  111.  86,  113  N.  E. 
954;  Bailey  v.  Galpin,  40  Minn. 
319,  41  N.  W.  1054;  Simmons  v. 
Hutchinson,  81  Miss.  351,  33  So. 
21;  Baker  v.  Bartlett,  18  Mom 
446,  56  Am.  St.  Rep.  594,  45  Pac. 
1084;  Banks  v.  Ammon,  27  Pa. 
St.  172;  Merritt  v.  Bunting,  107 
Va.  174,  12  Ann.  Cas.  954,  57  S. 
E.  567;  Bright  v.  Buckman  (C. 
C.)    39    Fed.    247. 

52.  Parkside  Realty  Co.  v. 
MacDonald,  166  Cal.  426,  137  Pac. 
21;  Walter  v.  Hartwig,  106  Ind. 
123,  6  N.  E.  5;  Musick  v.  Barney, 
49  Mo.  458;  Woods  v.  Garnett, 
72  Mass.  78,  16  So.  .'!90;  Hastinsa 
V.  Cutler,  24  N.  H.  481;  Mds- 
grove  V.  Bonser,  5  Ore.  313,  20 
Am.    Rep.    737;    Pliillis   v.    Gross, 


2186  Real  Propeety.  [§  567 

But  occasionally  a  directly  contrary  view  has  <>btained, 
to  the  effect  that  the  purchaser  may  entirely  ignore  the 
record  in  such  case."'" 

(d)    Instruments  not  in  chain  of  title.     Tlie 


recording  acts  have  been  construed  as  charging  a  pur- 
under  which  the  grantor  or  mortgagor  claims,  that 
as  having  been  executed  by  a  person  in  the  chain  of  title 
is,  if  there  is  another  and  independent  chain  of  title 
aifecting  the  land,  but  of  those  only  which  appear  there 
theory  that,  if  he  exercised  proper  diligence,  he  would, 
chaser  with  notice  of  a  recorded  instrument  on  the 
is  no  clue  calling  his  attention  to  such  instrumenrs.  t'or 
by  searching  the  records,  discover  the  existence  and 
terms  of  such  instrument,  and  he  has,  on  the  same 
upon  the  records,  a  purchaser  is  not  affected  with 
mortgagee  is  ordinarily  regarded  as  charged  wilh  notice, 
notice  of  the  instruments  contained  therein,  since  there 
not  of  all  the  instruments  which  appear  on  the  record  as 
theory,  been  held  not  to  be  charged  with  notice  when  his 
failure  to  discover  the  recorded  instrument  Vv^is  not 
owing  to  lack  of  diligence.  Accordingly,  a  grantee  or 
instance,  A  purchasing  from  B  is  not  affected  with 
notice  of  a  conveyance,  previouslj^  recorded,  from  C  to 
D,  unless  B's  title  appears  on  the  record  to  be  derived 
through  C.^^     And,  if  a  conveyance  is  not  recorded,  the 

32  S.  D.  4.38,  143  N.  W.  373,  Pac.  489;  Harris  v.  Reed,  21 
Gilbert  v.  Jess,  31  Wis.  110.  Idaho,  364,  121  Pac.  780;  City  of 
And  so  where  an  instrument  Chicago  v.  Witt,  75  lU.  211;  Sin- 
was  recorded  in  the  wrong  coun-  clair  v.  Gunzenhauser,  179  Ind. 
ty,  but  the  subsequent  purchaser  78,  98  N.  E.  37,  100  N.  E.  376; 
saw  it  on  record.  Perrin  v.  Gardner  v.  Jaques,  42  Iowa,  577; 
Reed,  35  Vt.   2.  Ora    v.    Bane,    92    Kan.    567,    141 

53.  Nordman  v.  Rau,  86  Kan.  Pac.  303;  John  T.  Moore  Plant- 
19,  38  L.  R.  A.  (N.  S.)  400,  iug  Co.  v.  Morgan's  Louisiana  & 
Ann.  Cas.  1913B,  1068,  119  Pac.  T.  R.  &  S.  S.  Co.,  126  La.  840, 
351;  Kerns  v.  Swope,  2  Watts  53  So.  22;  Roberts  v.  Bourne,  23 
(Pa.)    75.  Me.  165,  39  Am.  Dec.  614;    Baker 

54.  Abbott  V.  Parker,  lO.''.  Ark.  v.  Griffin,  50  Miss.  158;  Page 
425,  147  S.  W.  70;  Standard  Oil  v.  Waring,  76  N.  Y.  463:  Blake 
Co.    V.     Slye,     164     Cal.     435,     129  v.    Graham,    6    Ohio    St.    580,    67 


^  567] 


Priorities  and  Eecordixg. 


2187 


fact  that  a  conveyance  or  mortgage  by  the  grantee 
therein  is  recorded  will  not  affect  with  notice  a  person 
who  subsequently  obtains  a  conveyance  from  the  same 
grantor.^-^  And  the  fact  that  there  is  of  record  a  inort- 
gage  from  B  to  A  does  not  charge  a  subsequent  pur- 
chaser from  A  with  notice  of  a  prior  conveyance  by  A 
to  B  which  was  not  recorded.^"*'"^  Likewise,  the  record 
of  the  conveyance  of  an  equitable  title  from  one  who 
has  such  title  only,  while  notice  to  a  subsequent  pur- 
chaser of  the  same  title  from  the  same  grantor,  is  not 
notice  to  one  who  purchases  from  the  holder  of  the 
legal  title,-^*'  provided  at  least  he  has  no  notice,  actual 


Am.  Dec.  360;  Perkins  v.  Cissell, 
32  Okla.  827,  124  Pac.  7;  Ad- 
vance Thresher  Co.  v.  Esteb,  41 
Ore.  469,  69  Pac.  447;  Hethering- 
ton  V.  Clark,  30  Pa.  St.  393; 
Smyly  v.  Colleton  Cypress  Co., 
95  S.  C.  347,  78  S.  E.  1026;  White 
V.  McGregor,  92  Tex.  556,  71 
Am.  St.  Rep.  875,  50  S.  W.  564; 
Webb  V.  Ritter,  60  W.  Va.  193, 
54  S.  E.  484.  In  Fullerton  Lum- 
ber Co.  V.  Tinker,  22  S.  D.  427, 
18  Ann.  Cas.  11,  118  N.  W.  700, 
the  decision  to  the  contrary  is 
based  on  the  fact  that  the  regis- 
ter of  deeds  was  required  to 
keep  an  index,  which  would  show 
in  one  place  all  the  conveyances 
which  might  be  made  of  any 
particular  piece  of  property. 

55.  Tennessee  Coal,  Iron  & 
Railroad  Co.  v.  Gardner  131  Ala 
599,  32  So.  622;  Rowe  v.  Hender 
son  Naval  Stores  Co.,  139  Ga 
318,  77  S.  E.  17;  Booker  v.  Book 
er,  208  111.  529,  100  Am.  St.  Rep 
250,  70  N.  E.  709;  Roberts  v 
Bourne,  23  Me.  165,  39  Am 
Dec.  614;  Board  of  Education  of 
Minneapolis  v.  Hughes,  118  Minn. 
404.    41    L.    R.    A.     (N.    S.)     n37. 


136  N.  W.  1095;  Hart  v.  Gardner, 
81  Miss.  650,  33  So.  442;  Page 
V.  Waring,  76  N.  Y.  463;  Hether- 
ington  V.  Clark,  30  Pa.  St.  393; 
Sayward  v.  Thompson,  11  Wash. 
706,    40    Pac.    379. 

It  has  been  said  that  a  pur- 
chaser from  one  in  possession 
can  not  assert  ignorance  of  a 
prior  recorded  conveyance  by  his 
vendor,  merely  because  no  con- 
veyance to  his  vendor  appears  of 
record,  and  that  he  is  chargeable 
with  notice  of  any  recorded  con- 
veyance made  by  his  vendor  in 
possession.  Eversole  v.  Virginia 
Iron,  Coal  &  Coke  Co.,  122  Ky. 
649,  92  S.  W.  593.  But  he  would 
be  chargeable  with  notice  of  a 
previous  recorded  conveyance  by 
his  vendor  even  if  his  vendor  is 
not    in    possession. 

55a.  Sternberger  v.  Ragland, 
57  Ohio  St.  148,  48  N.  E.  811; 
Pyles  V.  Brown,  189  Pa.  St.  164, 
69  Am.  St.  Rep.  794,  42  Atl.  11; 
Veazie  v.  Parker,  23  Me.  170; 
Pierce  v.  Taylor,  23  Me.   246. 

56.  Pearce  v.  Smith,  126  Ala. 
116,  28  So.  37;  Ora  v.  Bane,  92 
Kan.    567,    141    Pac.    303;    Becker 


2188  Eeal  Propekty.  [§  567 

or  constructive,  of  the  equitable  title-^^""  This  general 
rule,  restricting  the  operation  of  the  record  as  notice 
to  subsequent  purchasers,  is  obviously  based  upon  the 
prevailing  method  of  indexing  the  records  by  the  names 
of  the  grantors  and  grantees,  and  it  is  readily  conceiv- 
able that  the  introduction,  in  any  particular  community, 
of  a  method  of  indexing  the  records  with  reference  to  the 
property  atfected,  might  be  regarded  by  the  courts  as 
ground  for  abrogating  the  rule."*" 

If  two  or  more  persons  join  as  grantors  or  mortga- 
gors, the  grantee  or  mortgagee,  or  one  claiming  under 
him,  is  chargea])le  with  notice  of  recorded  instruments 
executed  by  each  of  them,  or  by  persons  in  the  chain  of 
title  under  which  each  of  them  claims.^^  And  tUe  case 
is  the  same  when  two  or  more  persons,  as  asserting 
conflicting  claims  to  land,  or  as  having  merely  undivided 
interests 'therein,  make  separate  conveyances  thereof  to 
one  person.^^ 

Conveyance  of  neighboring  la,nd.    A  purchaser 


is,  it  appears,  ordinarily  charged  with  notice  of  an 
incumbrance  upon  the  property  created  by  an  instru- 
ment which  is  of  record,  although  the  primary  purpose 
of  such  instrument  is,  not  the  creation  of  such  ineum- 
Ijrance,  but  the  conveyance  of  neighboring  proiierty. 
For   instance,    if    one    owning   two    adjoining    city   lots 

V     Stroeher,    167    Mo.    306,    66    S.  Law    Rev.    at    p.    324,    upon    the 

V\^.   1083;    Tarbell  v.   West,   86   N.  effect  of  a  mortgage  by  one  claim- 

Y.    280;     Sands    v.    Beardsley,    32  ing  under  a  contract  of  sale. 
W.   Va.   594,   9    S.   E.    925.  57.     See   FuUerton   Lumber   Co. 

56a.     Davis   &   Son  v.  Milligan,  v.   Tinker,  22  S.  D.   427,   18  Ann. 

88  Ala.   523,  6   So.  908    (semMe) ;  Cas.  11.  118  N.  W.  700;   Harris  v. 

Alden     v.     Garver,     32     in.     32;  Reed,    21     Idaho,    364,    121     Pac. 

.Tones    V.    Lapham,    15    Kan.    540;  780;    Balch  v.  Arnold,  9  Wj'O.  17. 

Balen  v.  Mercier,  75  Mich.  42,  42  59  Pac.  434. 

N.    W.    666;    Crane    v.    Turner,    7  58.     Gimon    v.    Davis,    36    Ala. 

Hun    (N.  Y.)    357,  aff'd   67   N.  Y.  589;   Creel  v.  Keith,  148  Ala.  233, 

437.     See  Edwards  v.   McKernau,  41    So.   780. 

55  Mich.  520,  22  N  .W.  20.     These  59.     Brannan    v.    Marshall,    1S4 

citations    are    in    part    from    an  Ala.  375,  63  So.  1007. 
editorial     note     in    .17     Columbia 


§  567]  Priorities  and  Recording.  2189 

conveys  one  of  them,  the  instrument  of  conveyance  ex- 
pressly granting  an  easement  as  against  the  lot  retained 
in  favor  of  that  conveyed,  the  record  of  such  conveyance 
will,  it  seems,  affect  a  subsequent  purchaser  of  the 
former  lot  with  notice  of  such  easement  and  he  will  take 
subject  thereto.  In  such  a  case,  at  common  law,  the 
purchaser  would  take  subject  to  the  easement  previous- 
ly^ created,  as  being  a  legal  interest,  irrespective  of 
whether  he  has  notice  thereof,*'^  and  the  rule  in  this 
respect  could  not  well  be  regarded  as  changed  by  the 
adoption  of  the  recording  law,  as  applied  to  a  case  in 
which  the  grant  of  the  easement  does  appear  of  record, 
though  in  connection  with  the  conveyance  of  other  land, 
to  which  the  easement  is  made  appurtenant.^'  And 
when,  as  may  occur,"^  the  acceptance  of  a  convey- 
ance of  land,  or  of  a  grant  of  an  easement  in  particular 
land,  involves  the  creation  of  an  easement  upon  other 
land,  belonging  to  the  grantee,  in  favor  of  land  belong- 
ing to  the  grantor,  by  reason  of  words  of  contract  or 
reservation  inserted  in  the  instrument,  a  subc^^equent 
purchaser  of  such  other  land  from  the  grantee  would,  it 
seems,  be  charged  with  notice  of  the  easement,  by  reason 
of  the  record  of  the  conveyance  or  grant,  althou2:h  the 
primary  purpose  thereof  was  to  convey  an  interest  in 

60.  See  ante,  §  566(a),  11  chargeable  with  notice,  by  the 
Halsbury's  Laws  of  England,  247;  record  of  the  conveyance  to  A, 
Leech  v.  Schweder,  9  Ch.  App.  that  not  only  did  she,  A,  have  the 
463,    474.  part   described,   but   also   that   an 

61.  See  Hammonds  v.  Eads,  146  easement  was  granted  by  that 
Ky.  162,  142  S.  W.  379,  Glorieux  conveyance  to  A  over  the  balance 
V.  Lighthipe,  88  N.  J.  L.  199,  Ann.  of  the  tract. 

Cas.  1917E,  484,  96  Atl.  94;    Bow-  62.     See     Dyer     v.     Sanford,     9 

man  v.   Holland,   116   Va.    805,  83  Meto.       (Mass.)       404;      Case      v. 

S    E.  393.     In  Mitchell  v.  D'Olier,  Haight,    3    Wend.     (N.    Y.)     632; 

68  N.  J.  L.  375,  59  L.  R.  A.  949,  referred  to  in  6  Harv.  Law  Rev. 

53    Atl.    467,     it    was    held    that  311,    article    by    H.    W.    Chaplin, 

where   a    conveyance    to    B    of    a  Esq.       In    the    first    cited     case, 

tract    of    land    contained    an    ex-  Shaw,   C.   J.,   says:    "We  think   a 

ception   of  a  certain   part   specif-  grant    may    be    so    made    as    to 

ically   described,   as   having   been  create    a    right    in    the    grantee's 

previously  conveyed  to  A.,  B  was  land  in  favor  of  the  grantor.  For 
2  R.  P.— 63 


2190  Real  Property.  [§  567 

different  land.  And  if,  in  conveying  lot  A,  tlie  grantor 
enters  into  a  restrictive  agreement  as  to  the  improve 
ment  of  lot  B,  retained  by  him,  a  subsequent  purchaser 
of  lot  B  would  ordinarily  be  charged  with  notice  of  the 
agreement,  by  reason  of  its  record  as  a  part  of  the 
conveyance  of  lot  A.  Were  he  not  so  charged,  the  re- 
strictive agreement  might  be  to  a  considerable  extent 
nugatory.^'"^  And,  as  will  appear  later,^'^  where  one 
mortgage  covers  two  or  more  lots  or  tracts,  the  pur- 
chaser of  one  lot  or  tract  is,  by  the  record  of  a  previous 
conveyance  or  mortgage  of  the  other  tract,  increasing 
the  proportion  of  the  mortgage  debt  to  be  borne  by  the 
former  lot  or  tract,  charged  with  notice  thereof. 

(e)    Instruments  executed  prior  to  acquisition 


of  title.  The  question  whether  a  jjurchaser  is  charged 
with  notice  by  the  record  of  a  conveyance,  executed  by 
a  f)erson  in  his  grantor's  chain  of  title  before  such  per- 
son's acquisition  of  the  title,  has  been  considered  in 
connection  with  our  discussion  of  the  doctrine  of  the 
grantor's  estoppel  to  assert  an  after  acquired  title,'^^"*^'' 
it  being  only  by  reason  of  that  doctrine  that  such  a  con- 
veyance by  one  without  title  can  in  any  case  be  effective. 

instance;     suppose    A.    has    close  C3.     King    v.    St.    Louis    Union 

No.   2,   lying   between  two   closes.  Trust  Co.,  226  Mo.  351,  126  S.  W. 

Nos.   1  &   3,  of  B;    and   A  grants  415;     Lowes    v.    Carter,    124    Md. 

to  B    the  right  to  lay  and  main-  678,  93  Atl.  216;  Whistler  v.  Cole, 

tain    a    drain  'from    close    No.    1,  81    N.    Y.    Misc.    519,    143    N.    Y. 

across  his  close  No.  2,  thence  to  Supp.  478,  146  N.  Y.   Supp.  1118; 

be    continued    through    his    own  Holt  v.  Fleischman,  75  N.  Y.  App. 

close,  No.  3,  to  its  outlet;   and  A,  Div.    593,    78    N.    Y.    Supp.    647. 

in  his  grant  to  B,  should  reserve  But  a  contrary  view  was  adopted 

the  right  to  enter  his  drain,   for  in  Glorieux  v.  Lighthipe,  88  N.  J. 

the    benefit    of    his    intermediate  L.    199,   Ann.    Cas.    1917E   484,    96 

close,  with  the  right  and  privilege  Atl.    94,   on   the   ground   that   the 

of  having  the  waste  water  there-  statute,     in     making     the     record 

from  pass  off  freely   through  the  notice    to    subsequent   purchasers, 

grantee's    close,    No.    3,    forever.  meant    purchasers    of    the    same 

In  effect,  this,  if  accepted,  would  land  as  that  previously  conveyed, 

secure  to  the  grantor  a  right   in  64.     Post.   §   625. 

the  grantee's  land."  65-67.     Ante,  §   545(e). 


§  567]  Pkioeities  and  Kecobding.  2191 

The  cases  are  not  in  harmony  as  to  whether  a  purchaser, 
finding  the  record  of  a  conveyance  by  A  to  B  for  in- 
stance, and  a  subsequent  conveyance  by  B  to  the  vendor, 
must  examine  the  records  to  see  whether  B,  before  the 
conveyance  by  A  to  him,  had  made  a  conveyance  to  some 
other  person,  which,  upon  B  's  acquisition  of  title,  vested 
the  title  in  such  person. 

(f )     Instruments    executed    after    apparently 

parting  with  title.  It  is  generally  agreed  that  a  pur- 
chaser is  not  charged  with  notice  of  a  conveyance  by  a 
person  in  the  grantor's  chain  of  title,  by  reason  of  the 
record  thereof,  if  such  conveyance  was  executed  after 
the  grantor  therein  appears,  by  a  recorded  conveyance, 
to  have  parted  with  the  title.^^  For  instance,  if  A  first 
conveys  to  B,  and  then  conveys  to  C,  a  purchaser  from 

B,  is  not,  by  reason  of  the  record  of  the  conveyance  to 

C,  charged  with  notice  of  its  existence,  so  as  to  be  put 
on  inquiry  as  to  the  validity  of  the  conveyance  by  A  to 
B.  He  has  the  right  to  assume  that  A,  having  conveyed 
to  B,  would  have  made  no  further  conveyance,  and  he  is 
consequently  under  no  obligation  to  search  for  such  a 
conveyance.  Whether,  in  case  the  purchaser  from  B 
had  actual  notice  of  the  subsequent  conveyance  to  C,  he 
would  be  put  on  inquiry  thereby  as  to  the  validity  of 
the  conveyance  to  B,  is  another  question,  which  would 
probably  call  for  an  affirmative  answer. 

(g)     Instrument    recorded    after  parting  with 

title.  When  a  purchaser  who  receives  his  conveyance 
before  the  record  of  a  prior  conveyance  by  the  same 
grantor  to  another,  nevertheless  takes  subject  to  such 
prior  conveyance,  as  having  actual  notice  thereof,  on.^ 
who  purchases  from  him,  but  after  the  record  of  such 
prior  conveyance,  has  usually  been  regarded  as  taking 

68.     Goodkind    v.    Bartlett,    153  Hooker  v.  Pierce,  2  Hill   (N.  Y.) 

HI.   419,   38   N.   E.    1045;    Tydings  650;    White  v.  McGregor,  92  Tex. 

V.  Pitcher,  82  Mo.  379;  Chowen  v.  556.    71    Am.    St.   Rep.    875,    50    S. 

Phelps,  26  Mont.  524,  C9  Pac.  54;  W.   564. 


2192  Real  Property.  [§  567 

subject  thereto.  Such  last  purchaser  cannot  claim 
priority  as  a  purchaser  from  an  innocent  purchaser,*^' 
since  his  vendor  took  with  notice,  and  he  cannot  him- 
self claim  to  be  an  innocent  purchaser,  because  he  is 
charged  with  notice  by  the  record  of  the  prior  convey- 
ance before  his  purchase.'^''  In  states  in  which  a  sub- 
sequent purchaser,  in  order  to  be  protected  as  against 
an  unrecorded  conveyance  of  which  he  has  no  notice, 
must  first  record  his  conveyance, '^^  it  seems  that  the  last 
purchaser  might,  under  such  circumstances,  bo  post- 
poned, even  though  he  purchased  before  the  record  of 
such  first  conveyance,  unless  he  records  his  conveyance 
before  the  first  conveyance  is  recorded,'^^ 

Under  the  doctrine  stated  in  the  preceding  para- 
graph, an  intending  purchaser,  although  he  finds  by  the 
index  of  grantors  in  the  record  office,  that  a  particular 
person  in  the  chain  of  title  executed  a  conveyance  of  the 
land,  must  nevertheless  continue  the  examination  of 
the  records  under  the  name  of  such  person,  in  order  to 
see  whether  there  was  subsequently  recorded  a  i^moc 
conveyance  by  such  person,  though,  as  before  stated'^^ 
he  is  under  no  such  duty  for  the  purpose  of  seeing 
w^hether  there  was  subsequently  recorded  a  suhsequent 
conveyance  by  such  person.  If,  however,  he  perform 
his  duty  in  searching  for  any  prior  conveyance,  he 
would  usually  discover  any  subsequent  conveyance  of 
record,  and  for  this  reason  there  seems  a  certain  incon- 
sistency in  making  the  question  of  his  constriK^tive  no- 
tice of  a  conveyance  subsequently  recorded  depend  upon 

69.  Post.  §  575.  280;   Parrish  v.  Mahany,  10  S.  D. 

70.  Mahoney  v.  Middleton,  41  276,  66  Am.  St.  Rep.  715,  73  N.  W. 
Cal.  41;  Bayles  v.  Young  ,51  111.  97;  White  v.  McGregor,  92  Tex. 
127;  Van  Aken  v.  Kleason,  34  556,  71  Am.  St.  Rep.  875,  50  S. 
Mich.  477;  Cook  v.  French,  96  W.  564,  (dictum);  Erwin  v. 
Mich.   525,   56   N.  W.   101;    Woods  Lewis,  32  Wis.  276. 

V.    Garnett,    72    Miss.    78,    16    So.  71.     Post,    §    567(1),    note   11. 

390;   Jackson  v.  Post,  9  Cow.   (N.  72.     Fallass   v.    Pierce,   30   Wis. 

Y.)    120,   15   Wend.    (N.   Y.)    588;  443. 

Van     Rensselaer     v.      Clark,      17  73.     Ante,    §    5G7(f). 

Wend.    (N.    Y.)    25,    31   Am.    Dec. 


§  567]  Priorities  and  Recording.  2193 

the  date  of  the  conveyance.  In  one  state  any  distinction 
in  this  regard  is  obviated  by  decisions  to  the  effect  that 
an  intending  purchaser,  having  found  on  the  lecords  a 
conveyance  by  a  particular  person  in  the  chain  of  title, 
is  under  no  obligation  to  ''run  down"  such  person 
further  in  the  index  of  grantors  for  the  purpose  of  dis- 
covering any  prior  conveyance  by  him  subsequently  re- 
corded/^ 

(h)    What  constitutes  recording.    By  the  con- 


struction usually  placed  on  the  recording  acts,  and  fre- 
quently by  the  express  language  thereof,  it  is  the  time 
of  the  filing  or  deposit  of  an  instrument  for  record,  and 
not  the  time  of  its  actual  record  by  the  official  recorder, 
that  determines  the  rights  of  the  claimant  thereunder 
as  against  a  subsequent  purchaser.'^^ 

That  after  the  instrument  has  been  recorded,  the 
record  is  in  some  way  destroyed,  as  by  tire,  has  b'?en  re- 
garded as  not  affecting  the  validity  of  the  act  of  record, 
for  the  purpose  of  protecting  the  claimant  thereunder 
as  against  a  subsequent  purchaser. '^^"'^^ 

74.  Morse  v.  Curtis,  140  Mass.  Cas.  559,  38  So.  797;  Lewis  v. 
11,  54  Am.  Rep.  456,  2  N.  E.  Hinman,  56  Conn.  55,  13  Atl. 
929.  In  Day  v.  Clark,  25  Vt.  143;  Greenfield  v.  Stout,  122  Ga. 
Vt.  397,  the  same  result  is  attain-  303,  50  S.  E.  Ill;  Tucker  v.  Shaw, 
ed  on  the  theory  that,  as  a  subse-  158  111.  326.  41  N.  E.  914;  Sinclair 
quent  purchaser  with  notice  from  v.  Slawson,  44  Mich.  123,  38  Am. 
a  purchaser  without  notice  takes  Rep.  235,  6  N.  W.  207;  Deming 
free  from  any  adverse  claim,  the  v.  Miles,  35  Neb.  739,  37  Am.  St. 
last  purchaser  is,  in  this  case,  to  Rep.  464,  53  N.  W.  665:  Davis  v. 
be  preferred,  because  he  does  not  Whitaker,  114  N.  C.  279,  41  Am. 
know  that  his  grantor  had  actual  St.  Rep.  793,  19  S.  E.  699;  Fara- 
notice  of  the  unrecorded  convey-  bee  v.  McKerihan,  172  Pa.  234,  51 
ance.  Such  a  view,  that  a  pur-  Am.  St.  Rep.  734,  33  Atl.  583; 
chaser  is  protected  unless  he  Throckmorton  v.  Price.  28  Tex. 
knows  that  his  vendor  had  notice  605,  91  Am.  Dec.  334.  And  see 
of  an  adverse  claim,  appears  to  authorities  cited  post,  §  567 (i), 
find    no    support    elsewhere.      See  note  78. 

also  Bowman  v.  Holland,  116  Va.          76-77.     Paxson  v.   Brown,   10   C. 

805,  83  N.  E.  393.  C.   A.   135,   61   Fed.    874;    Houston 

75.  See  Chapman  &  Co.  v.  Oil  Co.  of  Texas  v.  Wilhelm,  104 
Johnson,    142    Ala.    633,  4    Ann.  C.  C.  A.  618,  182  Fed.  474;    Alvis 


-l9-t  Eeal  Property.  [§  567 
(i)    Time  allowed  for  recording.     The  statute 


occasionally  provides  that  the  instrument  shall  be  re- 
corded or  filed  for  record  within  a  certain  period  after 
its  delivery,  or  expressly  allows  such  a  period  for  re- 
cording. A  requirement  that  the  instrument  shall  be 
recorded  w^ithin  a  specified  time  would  ordinarily  be 
satisfied  by  the  filing  of  it  for  record  within  that  time, 
the  grantee  not  being  in  a  position  to  control  the  time 
of  actual  recording  by  the  official  recorder.'**  This  would 
seem  to  be  a  reasonable  construction  to  place  upon  such 
a  provision,  and  usually  the  statute  contains  an  express 
declaration  that  the  instrument  shall  be  regarded  as  re- 
corded from  the  time  at  which  it  is  filed  or  ''lodged" 
for  record, 'or  that  it  shall  be  effe.ctive  as  against  sub- 
sequent purchasers  from  that  time,  thus  indicating  that 
the  time  of  filing  and  not  the  time  of  actual  recording 
is  the  important  consideration. 

A  provision  thus  specifying  the  time  within  which 
the  instrument  must  be  recorded  in  order  to  make  it 
etfective  as  against  subsequent  purchasers  has  ordina- 
rily been  construed  as  making  the  record  of  the  instru- 
ment at  any  time  within  the  period  named  e»^iui\'alent 
to  its  record  at  the  time  of  its  delivery,  so  as  to  give  it 
priority  over  a  subsequent  conveyance  made  lo  a  bona 
fide  purchaser  within  that  period,  even  though  this  be 
first  recorded. ^^    The  record  of  an  instrument    offer  the 

V.    Morrison,    63    IH.    181,    14    Am.  Gibbons,  30  Gratt.  (Va.)  632. 

Rep.  117;   Shannon  v.  Hall,  72  111.  78.  'McGregor  v.  HaH,  3   Stew. 

354,    22    Am.    Rep.    146;    Hyatt   v.  &  P.   397;    Dubose   v.   Young.   10 

Cochran,  69  Ind.  436;    Thomas  v.  Ala.     365;     Gill     v.     Fauntleroy's 

Hanson,   59   Minn.   274;    Myers  v.  Heirs,     8     B.     Mon.     (Ky.)     177; 

Buchanan,   46   Miss.   397;    Geer  v.  Harrold    v.    Simonds   &   Bailey,    9 

Missouri    Lumber    Min.    Co.,    134  Mo.    326;    Hughes    v.    Powers,    99 

Mo.  85,  34  S.  W.  1099,  56  Am.  St.  Tenn.    480,    4   S.   W.    1.     And    see 

Rep.    489;     Deming    v.    Miles,    35  authorities    cited    ante.    §    567(h) 

Neb.  739,  37  Am.  St.  Rep.  464,  53  note  75.    But  see  Benson  v.  Green, 

N.  W.  665;    Cooper  v.  Flesner,  24  80  Ga.  230,  4  S.  E.  851;   Moore  v. 

Okla.    47,    23    L.    R.    A.     (N.    S.)  Collins,   15  N.  C.  384. 

1180,    20    Ann.    Cas.    29,    103    Pac.  79.     Betz  v.  Mullin,  62  Ala.  365; 

1016;    Houston  v.  Blythe,  71  Tex.  White   v.    Interstate   Bldg.   Ass'n., 

719,  10  S.  W.  520;    Armentrout  v.  106    Ga.    146,    32    S.    E.    26;    Mc- 


§  567]  Priorities  and  Recording.  2195 

statutory  period  can  obviously  not  have  sucli  an  effect 
of  making  the  record  relate  back  to  the  time  of  de- 
livery,^^  but  for  other  purposes  it  is  as  effective  as  rec- 
ord within  the  period,  that  is,  it  operates  as  construc- 
tive notice  to  one  purchasing  after  such  record.**^ 

As  between  two  instruments,  neither  of  which  is  re- 
corded within  the  statutory  time,  the  matter  of  priority 
would  ordinarily  be  determined,  it  seems,  as  if  there 
were  no  provision  in  the  statute  as  to  time.^^  As 
betw^een  two  instruments,  of  which  the  one  first  re- 
corded was  not  recorded  within  the  statutory  time,  and 
the  other  was  recorded  within  such  time,  it  was  held, 
on  a  construction  of  the  statute,  that  the  one  first  re- 
corded was  entitled  to  jDriority.*'^ 

In  the  absence  of  a  statutory  provision  as  to  the 
time  of  recording,  the  record  of  an  instrument  cannot 
relate  back  to  the  time  of  its  delivery,  so  as  to  take 
priority  over  an  intervening  conveyance  oi"  incum- 
brance.^* If  the  record  did  so  relate  back,  without  any 
limitation  as  to  the  extent  of  the  interval  between  the 
delivery   and   record   of   the  conveyance,   a   subsequent 

Carthy  v.  Seisler,  130  Ind.  63,  Bush  (Ky.)  225;  Claiborne  v. 
29  N.  E.  407;  Finley  v.  Spratt,  14  Holmes,  51  Miss.  146;  Sanborn  v. 
Bush  (Ky.)  225  Claiborne  v.  Adair,  29  N.  J.  Eq.  338;  North- 
Holmes,  51  Miss.  146;  Fries  v.  rup  v.  Bremer,  8  Ohio,  392; 
Null,  154  Pa.  573,  26  Atl.  554  Pleschner  v  Sumpter,  12  Ore.  161, 
(dictum);  Steele  v.'  Mansell,  6  6  Pac.  506;  Fries  v.  Null,  154  Pa. 
Rich.  L.  (S.  C.)  543;  Camp  Mfg.  573.  26  Atl.  554;  CoUins  v. 
Co.  V.  Carpenter,  112  Va.  79,  70  Aaron,  162  Pa.  539,  29  Atl. 
S.  E.  497.  724;   Levi  v.  Gardner,  53  S.  C.  24, 

80.  Maddox  v.  Wilson,  91  Ga.  30  S.  E.  617;  Turner  v.  Cochran, 
39,  16  S.  E.  213;  Pollard  v.  94  Tex.  480,  61  S.  W.  923. 
Cocke,  19  Ala.  188;  Schmidt  v.  82.  McGuire  v.  Barker,  61  Ga. 
Zahrndt,  148  Ind.  447,  47  N.  E.  339;  Fleschner  v.  Sumpter,  12 
335;  Littlefield  v.  Prince,  96  Me.  Ore.  161,  6  Pac.  506;  Souder  v. 
499,  52  Atl.  1010;  Harding  v.  Morrow,  33  Pa.  83;  Collins  v. 
Allen,  70  Md.  395,  17  Atl.  377;  Aaron,  162  Pa.  539,  29  Atl.  724. 
Leger  v.  Doyle,  11  Rich.  L.  (S.  83.  Fries  v.  Null,  154  Pa.  573, 
C.)   109,  70  Am.  Dec.  240.  26    Atl.    554,    158    Pa.    15,    27    Atl. 

81.  Adair  v.  Davis,  71  Ga.  769;  867. 

McVay   v.    English,    30    Kan.    368,  84.     See    Sigourney    v.    Lamed, 

1   Pac.   795;    Finley   v.    Spratt,   14      lo  Pick.    (Mass.)    72. 


2196  Real  Property.  [§  567 

purchaser  would  never  be  protected  against  a  prior  un- 
recorded conveyance.  In  one  state,  however,  it  has  been 
held  that,  although  there  is  no  statutory  provision  as 
to  the  time  of  record,  the  record  will  relate  back  to  the 
time  of  delivery  if  the  recording  occurs  within  a  ''rea- 
sonable" time.^^  In  one  state  it  has  been  decided  that, 
although  the  statute  in  terms  invalidates  an  unrecorded 
conveyance  only  as  against  a  subsequent  purchaser 
whose  conveyance  shall  first  be  duly  recorded,  a  delay 
in  recording  an  instrument  may  operate  by  way  of 
estoppel  to  prevent  the  beneficiary  thereunder  from  as 
serting  it  as  against  a  subsequent  purchaser  whose  con- 
veyance is  not  first  recorded.^^  This  view  appears  not  to 
have  been  asserted  elsewhere,  though  there  are  numei'- 
ous  decisions  to  the  effect  that  the  failure  to  record 
may  operate  by  way  of  estoppel  in  favor  of  creditors 
of  the  grantor  who  give  credit  to  him  on  the  assump- 
tion that  he  is  still  the  owner  of  the  land.^''^^ 

The  question  of  the  effect  of  a  delay  in  recording 
presents  obvious  difficulties  from  a  practical  point  of 
view.  A  statute  which  allows  a  grantee,  by  recording 
his  conveyance  at  any  time  within  a  certain  period, 
thereby  to  obtain  priority  over  an  intervening  pur- 
chaser who  took  in  ignorance  of  the  prior  conveyance 
and  had  no  means  of  discovering  its  existence,  must 
frequently  work  hardship,  and  prevents  a  purchaser 
from  relying  with  any  sense  of  absolute  security  upon 
the  title  as  it  appears  of  record.  On  the  other  hand,  if 
a  grantee  is  allowed  no  time  within  which  he  may  re- 

85.  Goodsell  v.  Sullivan,  40  Kappes  v.  Rutherford  Park  Ass'n, 
Conn.  83;  Hartford  Building  &  60  N.  J.  Eq.  129.  See  also  Long- 
Loan  Ass'n  V.  Goldreyer,  71  Conn.  worth  v.  Chase,  1  McLean,  (U. 
95,  41  Atl.  659.  S.)    282.     And   compare   Mintz  v. 

86.  Marling  v.  Nommensen,  127  Russ,  161  N.  C.  538,  77  S.  E.  851 
Wis.  363,  5  L.  R.  A.  (N.  S.)  412,  That  a  delay  of  several  years  in 
115  Am.  St.  Rep.  1017.  7  Ann.  Cas.  recording  does  not  Involve  an 
364,  106  N.  W.  844.  See,  as  to  "abandonment"  of  one's  title,  see 
the  effect  of  a  failure  for  twenty-  Bond  v.  Wilson,  129  N.  C.  325,  40 
two  years   to   record   or   to   make  S.    E.    179. 

claim      as      constituting      laches,  86a.    Ante,  §  546. 


§  567]  Priorities  and  Kecording.  2197 

cord  the  instrument,  being  in  effect  liable  to  be  post- 
poned to  a  subsequent  conveyance  to  another  executed 
immediately  after  his  own  conveyance,  during  the  inter- 
val of  time,  perhaps,  necessary  for  the  transmission  of 
his  own  instrument  to  the  record  office,  such  grantee 
is  evidently  not  fully  protected. 

The  statutory  provisions  as  to  the  time  for  record- 
ing, construed,  as  they  have  been,  as  allowing  the 
grantee  to  postpone  recording  for  a  certain  period  with- 
out thereby  endangering  his  right  of  priority,  seem  to 
be  of  questionable  expediency.  A  greater  dtgree  of 
justice  is  likely  to  be  attained  by  the  statutes  which, 
not  naming  any  time  for  recording,  afford  protection 
as  against  a  subsequent  purchase  only  if  the  prior  con- 
veyance is  recorded  before  the  subsequent  purchase  oc- 
curs. Under  such  a  statute  no  doubt  a  purchaser  wiio 
exercises  the  greatest  possible  promptitude  in  record- 
ing his  conveyance  may  occasionally  be  postponed  by 
reason  of  the  immediately  previous  record  of  a  con- 
veyance to  another,  but  this  is  not  apt  to  occur,  and  if 
it  does  occur,  he  is  in  a  position  immediately  to  learn 
thereof  and  to  take  measures  accordingly,  while  when 
a  certain  period  is  allowed  for  recording,  a  purcliaser 
although  he  has  recorded  his  conveyance,  must  wait 
until  the  statutory  period  has  expired  before  he  can  rest 
assured  that  he  has  obtained  the  title  w^hich  he  under- 
took to  purchase. ^'^ 

(j)    Mistakes  by  recording  officer.    The  couiis 

of  the  different  states  are  divided  upon  the  (question  as 
to  who  must  suffer  the  loss  occasioned  by  an  error  made 
by  the  officer  in  recording  a  conveyance  deposited  with 
him  for  record.  Some  courts  liold  that  a  grantee,  by 
lodging  the  instrument  with  the  proper  officer  for  rec- 
ord, acquits  himself  of  all  responsibility  as  to  the  actual 
recording,  and  that  from  that  time  it  is  notice  to  sub- 
sequent purchasers  of  what  it  contains,  and  not  of  what 

87.     See  Webb,  Record  of  Title, 
§    7. 


2198  Real  Pkopeety.  [^,  567 

the  rocording  officer  may  make  it  show  on  the  rec- 
Qj,(j  S8S9  rpi^jg  view  is  usually  based  upon  the  language 
of  the  recording  statute  of  the  particular  state,  provid- 
ing in  effect  that  a  conveyance  shall  be  operative  as  a 
record,  or  as  against  a  subsequent  purchaser,  from  tlic 
time  that  it  is  filed  or  deposited  for  record.  Other 
courts  hold  that  subsequent  purchasers  are  bound  only 
by  what  the  records  show,  and  that  the  grantee  in  a 
conveyance,  in  order  absolutely  to  guard  against  mis- 
takes by  the  recorder,  and  to  insure  the  preservation 
of  his  rights  as  against  subsequent  purchasor^■,  must 
ascertain  that  the  recordino^  is  correctlv  done."''  This 
latter  view  is  usually  based  on  the  theor}^  that  che  re- 
cording officer  is  to  be  regarded,  in  respect  to  the  record 
of  any  particular  instrument,  as  the  agent  of  the  bene- 
ficiary under  the  instrument,  and  that  the  latter  is  in  a 
position,  by  the  exercise  of  a  considerable  degree  of  dili- 
gence, to  ascertain  whether  the  officer  has  correctly  per- 
formed his  duty,  which  a  subsequent  purchaser,  even  by 
the  exercise  of  the  greatest  diligence,  could  not  possibly 

88-89.     Minis   v.    Mims,    35    Ala.  McKerrihan,  172  Pa.  234,  51  Am. 

23;    Chapman    &   Co.   v.    Johnson,  St.  Rep.  734,  33  Atl.  583;   Parrish 

142  Ala.  633,  4  Ann.  Cas.  559,  38  v.  Mahany,   10  S.  D.   276,  66  Am. 

SO.  797;  Carter  v.  Tennessee  Coal  St.  Rep.  715. 

&  Iron  &  Ry.  Co.,  180  Ala.  367,  90.  Cady  v.  Purser,  131  Cal. 
61  So.  65  (deed  lost  in  record  552,  82  Am.  St.  Rep.  391,  63  Pac. 
office);  Case  v.  Hargadine,  43  844;  Shepherd  v.  Burkhalter,  13 
Ark  144;  Lewis  v.  Hinman,  56  Ga.  443,  58  Am.  Dec.  523;  Gil- 
Conn.  55,  13  Atl.  143;  Merrick  v.  christ  v.  Gough,  63  Ind.  576,  30 
Wallace,  19  111.  486;  Tucker  v.  Am.  Rep.  250;  Miller  v.  Bradford, 
Shaw,  158  111.  326,  41  N.  E.  914;  12  Iowa,  14;  Hall  v.  Wright,  137 
Zeiner  v.  Edgar  Zinc  Co.,  79  Kan.  Ky.  39,  127  S.  W.  516;  Hill  v.  Mc- 
406,  99  Pac.  614;  Gillespie  v.  Nichol,  76  Me.  314;  Brydon  v. 
Rogers,  146  Mass.  610,  16  N.  E.  Campbell,  40  Md.  331;  Grand 
711;  Mangold  v.  Barlow,  61  Miss.  Rapids  Nat.  Bank  v.  Ford,  143 
593,  48  Am.  Rep.  84;  Sinclair  v.  Mich.  402,  114  Am.  St.  Rep.  668, 
Slawson,  44  Mich.  123,  38  Am.  8  Ann.  Cas.  102,  107  N.  W.  76; 
Rep.  235;  Deming  v.  Miles,  35  Frost  v.  Beekman,  1  Johns.  Ch. 
Neb.  739,  37  Am.  St.  Rep.  464,  53  (N.  Y.)  288;  Beekman  v.  Frost, 
N.  W.  665;  Davis  v.  Whitaker,  18  Johns.  (N.  Y.)  544;  New 
114  N.  C.  279,  41  Am.  St.  Rep.  York  Life  Ins.  Co.  v.  White,  17 
793,    19    S.    E.    699;     Ferabee    v.  n.    Y.    469;     Jennings'    Lessee    v. 


§  567] 


Peiorities  and  Recording. 


2199 


do.  This  view  has  occasionally  been  adopted  even  when 
the  statute  in  terms  provided  that  the  instrument  shall 
operate  as  notice  from  the  time  of  its  filing  for  record.'-^^ 

Accordingly  as  the  one  or  the  other  of  tije  two 
views  referred  to  is  adopted,  it  is,  in  some  states,  im- 
material to  the  grantee  in  a  conveyance  that  the  in- 
strument is  recorded  in  the  wrong  book,  it  nevertheless 
operating  as  constructive  notice  to  subsequent  pur- 
chasers,''- while  in  other  states  the  contrary  is  true.^^ 

The  rule  before  referred  to^^  that  it  is  the  time  of 
the  filing  or  deposit  of  an  instrument  of  record,  and  not 
the  time  of  its  actual  record  by  the  official  recorder,  that 
determines  the  rights  of  the  claimant  thereunder  as 
against  a  subsequent  purchaser,  is  recognized  even  in 


Wood,  20  Ohio  261;  Prouty  v. 
Marshan,  225  Pa.  570,  25  L.  R.  A. 
(N.  S.)  1211,  74  Atl.  550;  Sawyer 
V.  Adams,  8  Vt.  172,  30  Am.  Dec. 
459;  Ritchie  v.  Griffiths,  1  Wash. 
429,  12  L.  R.  A.  384,  22  Am. 
St.  Rep.  155,  25  Pac.  341;  Pringle 
V.  Dunn,  37  Wis.  449,  19  Am. 
Rep.   772. 

91.  Miner  v.  Bradford,  12 
Iowa,  14;  Terrell  v.  Andrew 
County,  44  Mo.  309;  Sinclair  v. 
Gunzenhauser,  179  Ind.  78,  98  N. 
E.  37,  100  N.  E.  376    (semble). 

92.  Lignoski  v.  Croiker,  86 
Tex.  324,  24  S.  W.  278,  788; 
Swenson  v.  Bank,  9  Lea  (Tenn.) 
723.  In  Cawthon  v.  Stearns 
Culver  Lumber  Co.,  60  Fla.  313, 
53  So.  738,  it  was  held  that  since 
the  statute  did  not  contain  any 
requirement  as  to  recording  in  a 
particular  book,  the  fact  that  the 
instrument  was  recorded  in  a 
book  other  than  the  one  in  which 
it  might  be  expected  to  be  found 
was  immaterial. 

In  Pennsylvania,  although,  ac- 
cording to   the  latest   decision,   a 


purchaser  is  bound  only  by  what 
the  records  show,  nevertheless  ho 
Is  bound  by  a  mortgage  recorded 
and  indexed,  not  in  the  mort- 
gage book  and  index,  but  in  the 
deed  book  and  index,  since  it 
would  be  discovered  by  any  per- 
son examining  the  title.  Seo 
Prouty  V.  Marshall,  225  Pa.  570, 
25  L.  R.  A.  (N.  S.)  1211,  74  Atl. 
550;  distinguishing  Farabee  v.  Mc- 
Kerrihan,  172  Pa.  234,  51  Am.  St. 
Rep.  734,  33  Atl.  583. 

93.  Cady  v.  Purser,  131  Cal. 
552,  82  Am.  St.  Rep.  391,  63  Pac. 
844;  Sinclair  v.  Gunzenhauser, 
197  Ind.  78,  98  N.  E.  37,  100  N. 
E.  376;  Grand  Rapids,  etc..  Bank 
V.  Ford,  143  Mich.  402,  114  Am. 
St.  Rep.  668,  8  A.  &  E.  Ann.  Cas. 
102,  107  N.  W.  76;  Gillig  v.  Maass, 
28  N.  Y.  191;  Parsons  v.  Lent, 
PA  N.  J.  Eq.  67;  Drake  v.  Rep- 
gel,  10  Utah.  376,  37  Par.  583; 
Sawyer  v.  Adams,  8  Vt.  172; 
Bernard  v.  Benson,  58  Wash.  191, 
137  Am.  St.  Rep.  1051,  108  Pac. 
439. 

94.     Ante,    §   567(h). 


2200  Real  Property.  [<§  567 

tliose  states  in  which  a  grantee  is  not  protected  as 
against  subsequent  purchasers  by  the  mere  tiling  of 
the  instrument  for  record,  but  must  see  that  the  re- 
cording is  correctly  done.  In  this  class  of  states  it 
is  considered  that,  while  the  filing  or  deposit  of  the 
instrument  for  record  is  in  itself  nugatory,  yet  if  it 
is  thereafter  properly  recorded,  the  recording  dates 
back  to  the  time  of  tiling,  for  the  purpose  of  determin- 
ing priorities.^^ 

(k)  Index  to  records.  An  index  of  the  gran- 
tors and  grantees  as  named  in  the  recorded  convey- 
ances is  ordinarily  kept  in  the  record  office,  and  the 
statute  frequently  so  requires.  And  occasionally  the 
statute  requires  that  this  index  also  indicate  the 
property  conveyed,  and  perhaps  other  details  of 
the  conveyance.  A  subsequent  purchaser  has  been 
regarded  as  chargeable  with  notice  of  statements  in  the 
index,  even  after  the  conveyance  is  actually  recorded, 
in  so  far  as  such  statements  may  serve  to  correct  errors 
or  supply  omissions  in  the  record  itself.^''  An  entry  in 
the  index  is  sufficient  if  it  serves  to  put  a  purchaser 
on  inquiry ,^'^  and,  in  so  far  as  it  undertakes  to  describe 
the  land,  points  thereto  with  reasonable  certainty.'''^ 
An  omission,  from  the  entry  in  the  index,  of  all  descrip- 
tion of  the  land,  although  there  is  a  blank  space  for  such 

95.  Anderson  v.  Dugas,  29  Ga.  Mich.  123,  38  Am.  Rep.  235,  6  N. 
440;  Sinclair  v.  Gunzenhauser,  W.  207;  Pringle  v.  Dunn,  37  Wis. 
179  Ind.  78,  98  N.  E.  37,  100  N.  449,  19  Am.  Rep.  772.  But  a  sub- 
E.  376;  Terrell  v.  Andrew  County,  sequent  purchaser  has  been  held 
44  Mo.  309;  Leger  v.  Doyle,  11  not  chargeable  with  notice  of 
Rich.  (S.  C.)  109,  70  Am.  Dec.  statements  in  the  index  as  to 
240;  Bigelaw  v.  Topliff,  25  Vt.  matters  not  required  to  be  stated. 
282.  In  Whalley  v.  Small,  25  Gilchrist  v.  Gough,  63  Ind.  576,  30 
Iowa,    184,    while    this    principle  Am.    Rep.    250. 

was   conceded,   it  was   decided   to  97.     Jones     v.     Berkshire,      15 

be    inapplicable   when    there    was  Iowa,  248,  83  Am.  Dec.  412. 

a    delay    of    twenty-five    years    in  98.     Barney  v.  Little,   15   Iowa, 

the  actual  recording.  527;    Malbon   v.    Grow,    15   Wash. 

96.  Sinclair     v.     Slawson,     44  301,  46  Pac.  330. 


§  567]  Prioeities  and  Eecoeding.  2201 

descrijotion,  and  it  is  ordinarily  inserted,  has  been  held 
not  to  affect  the  effectiveness  of  the  entry,  the  index 
referring  to  the  place  of  record  of  the  conveyance.^" 

In  so  far  as  the  recording  statute  of  the  particular 
state  is  construed  as  charging  a  subsequent  purchaser 
with  notice  of  an  instrument  by  reason  merely  of  the 
filing  thereof,  without  reference  to  mistakes  or  omih;- 
sions  of  the  recorder,^  a  subsequent  purchaser  can  not 
assent  that  he  was  misled  by  errors  or  omissions  in  the 
index,  he  being  chargeable  with  notice  of  the  prior  in- 
strument without  reference  to  the  index.^  In  jurisdic- 
tions in  which  a  subsequent  purchaser  is  chargeable 
with  notice  of  a  prior  conveyance  by  reason  of  the  rec- 
ord thereof  only  if  the  record  is  correct,^  the  question 
w^hether  a  subsequent  purchaser  is  bound  by  r  prior 
conveyance  not  properly  indexed  has  usually  been  de- 
termined by  the  consideration  whether  its  inclusion  in 
the  index  is  to  be  regarded,  under  the  statute,  as  an 
essential  part  of  its  record,  the  subsequent  purchaser 
not  being  chargeable  with  notice  of  the  conveyance  if 
such  inclusion  is  an  essential  part  of  its  record,^  while 
he  is  so  chargeable  otherwise.^ 

99.     Oconto   V.    Jerrad,    46   Wis.  155,    25     Pac.    341;"     Lombard    v. 

317,  50  N.  W.  591;  St.  Croix  Land  Culbertson,  59  Wis.  433,  18  N.  W. 

&  Lumber  Co.  v.  Ritchie,  73  Wis.  399. 
409,  41  N.  W.  345,  1064.  5.     Chatham  v.  Bradford,  50  Ga. 

1.  Ante,  §  566 (j)  note  88.  327,    15   Am.   Rep.    692;    Agurs   v. 

2.  See  Amos  v.  Givens,  179  Ala.  Belcher  &  CresweU,  111  La.  378, 
605,  60  So.  829;  Davis  v.  Whit-  100  Am.  St.  Rep.  485,  35  So.  607; 
aker,  114  N.  C.  279,  41  Am.  St.  Bishop  v.  Schneider,  46  Mo.  472,  2 
Rep.  793,  19  S.  E.  699;  Herndon  Am.  Rep.  533;  Mutual  Life  Ins 
V    Ogg,  119  Ky.  814,  84  S.  W.  754.  Co.  of  New  York  v.  Dake,  87  N. 

3.  Ante,   §   566(j),   note  90.  Y.    257;    Green   v.    Garrington,    16 

4.  Barney  v.  McCarty,  15  Iowa,  Ohio  St.  548,  91  Am.  Dec.  103; 
510,  83  Am.  Dec.  427;  Koch  v.  Stockwell  v.  McHenry,  107  Pa.  St. 
West,  118  Iowa,  468,  96  Am.  St.  237,  52  Am.  Rep.  475;  Armstrong 
Rep.  394,  92  N.  W.  663;  Prouty  v.  Austin,  45  S.  C.  69,  29  L.  R. 
V.  Marshall,  225  Pa.  570,  25  L.  A.  772,  22  S.  E.  763;  Curtis  v. 
R.  A.  (N.  S.)  1211,  74  Atl-  550;  Lyman,  24  Vt.  338,  58  Am.  Dec. 
Ritchie  v.  Griffiths,   1   Wash.   429,  176. 

12  L.  R.  A.   384,  22  Am.   St.  Rep. 


2202  Real  Property.  [^  567 
(1)    Persons    affected   with   notice    by    record. 


The  recording  acts  usually  in  terms  require  the  record 
of  an  instrument  for  the  benefit  of  a  subsequent  pur- 
chaser or  incumbrancer  only.  Consequently,  one  who 
has  previously  acquired  an  interest  in  the  land,  or  who 
is  a  party  to  the  instrument  itself,  is  not  charged  with 
notice  of  any  facts  by  the  record.*'  For  instance^  the 
record  of  a  conveyance  does  not  charge  the  grantor 
therein  with  notice  that  the  grantee,  after  its  execution, 
fraudulently  inserted  an  additional  provision  therein,'^ 
nor  does  it  charge  the  rightful  owner  of  the  property 
with  notice  of  an  adverse  claim  thereto  on  the  part  of 
the  grantor  and  grantee.^  And  it  appears  to  be  well 
recognized  that  one  having  a  debt  secured  by  mortgage 
on  land  is  not,  by  the  record  of  a  subsequent  convey- 
ance or  mortgage  of  part  of  the  mortgaged  land, 
charged  with  notice  thereof,  so  as  to  be  precluded  from 
releasing  another  part  of  the  land  to  the  detriment  of 
the  subsequent  grantee  or  mortgagee.^ 

The  purchaser  of  an  equitable  title,  it  seems  evi- 
dent, cannot  be  in  a  better  position  as  regards  a  prior 
instrument  than  if  he  acquired  a  legal  title,  and  con- 
sequently he  takes  subject  to  a  prior  conveyance  or  in 

6.  Karns  v.  Olney,  80  Cal.  90,  525,  94  Am.  Dec.  350;  Bradtl  v. 
13  Am.  St.  Rep.  101,  22  Pac.  57;  Sharkey,  58  Ore.  153,  113  Pac. 
Lowden  v.  Wilson,  233  111.  340,  84      653. 

N.  E.  245;  Annan  v.  Hays,  85  Md.  9.     Birnie  v.  Main,  29  Ark.  591; 

505,  37  Atl.  20;   Corey  v.  Smalley,  Woodward  v.  Brown,  119  Cal.  283, 

106    Mich.    257,    58    Am.    St.    Rep.  51    Pac.   2,   542,    63   Am.    St.   Rep. 

474,    64    N.    W.    13;    Lausman    v.  168;    Lewis  v.  Hinman,  56   Conn. 

Drahos,    8    Neb.    457;    Stuyvesant  55,   13   Atl.   143;    Boone  v.   Clark, 

V.  Hall,  2  Barb.  Ch.   (N.  Y.)    151;  129    111.    446,    5   L.   R.   A.    276,    21 

First  Nat.   Bank   of  Dickinson   v.  N.    E.    850;     George    v.    Wood,    9 

Big    Bend    Land    Co.,    38    N.    D.  Allen,     80,     85     Am.     Dec.     741; 

33,    164    N.    W.    322;     Stivens    v.  Howard  Insurance  Co.  v.  Halsey, 

Summers,   68  Ohio  St.   421,  67  N.  8    N.    Y.    271,    59    Am.    Dec.    478; 

E.    884.  Lynchburg  Perpetual  Bldg.  Ass'n 

7.  Davis  V.  Monroe,  187  Pa.  v.  Fellers,  96  Va.  337,  70  Am. 
212,  67  Am.  St.  Rep.  581,  41  Atl.  St.  Rep.  851,  31  S.  E.  505.  So,  a 
44.  judgment  lienor  may  release  part 

8.  HoUey    v.    Hawley,    39    Vt.  of  his   lien  without  first  examin- 


<§>  567]  Peioeities  and  Recobding.  2203 

cumbrance  duly  recorded  to  the  same  extent  as  the  pur- 
chaser of  the  legal  title.  In  case  the  prior  conveyance 
involved  a  disposition  of  the  legal  title,  the  grantor  has 
nothing  left  of  which  to  dispose,  and  in  case  it  involved 
a  disposition  of  the  equitable  title  only,  it  would  be 
entitled  to  priority  as  being  first  in  order  of  time.^*^' 

(m)  Persons  entitled  to  assert  failure  to  record. 


The  statute  in  a  number  of  the  states  pi'ovides  that  an 
unrecorded  conveyance  shall  be  void  as  against  a  sub- 
sequent purchaser  without  notice  ''whose  conveyance  is 
first  recorded,"  thus  making  the  question  of  priority 
depend  to  a  considerable  extent  upon  priority  of  re- 
cording.^^ In  the  absence  of  such  a  clause,  it  has  usu- 
ally been  held  that  the  later  purchaser  may,  without 
recording  his  conveyance,  assert  priority  over  an  earlier 
unrecorded  conveyance  of  which  he  has  no  notice. ^^ 
The  statutory  clause  referred  to,  by  which  the  priority 
of  a  subsequent  conveyance  over  an  earlier  unrecorded 
conveyance  is  made  dependent  upon  the  earlier  record 
of  the  subsequent  conveyance,  has  been  referred  to^'^  as 
not  in  accord  with  the  general  policy  of  the  recording 
laws,  which  is  to  protect  a  subsequent  purchaser  who 
takes  for  value  and  without  notice  as  against  the  prior 

ing  the  records  to  see  how  it  will  37;     McGuire    v.    Barker,    61    Ga. 

affect     other     persons.       Taylor's  339;    Sanborn   v.   Adair,   29   N.    J. 

Ex'rs  V.  Maris,  5  Rawle  (Pa.)   51.  Eq.   338;    Swanstrom  v.  Washing- 

10.  See  Digman  v.  McCoUum,  ton  Trust  Co.,  41  Wash.  561; 
47  Mo.  372.     And  ante,  §   566(c).  Webb,  Record  of  Title,  §  13,  166. 

11.  1  Stimson's  Am.  St.  Law,  §  But  Houlahan  v.  Finance  Consol. 
1611.  See  Simmons  v.  Stum,  101  Min.  Co.,  34  Colo.  .^65,  82  Pac. 
111.  454;  Clabaugh  v.  Byerly,  7  484;  Brookfield  v.  Goodrich,  32 
Gill  (Md.)  354,  48  Am.  Dec.  575;  111.  363;  Simmons  v.  Stum,  101 
Drake  v.  McLean,  47  Mich.  102,  111.  454  are  to  the  effect  that  even 
10  N.  W.  126;  Westbrook  v.  Glea-  though  the  statute  does  not  in 
son,  79  N.  Y.  23;  Pennsylvania  terms  require  the  later  convcy- 
Salt  Mfg.  Co.  V.  Neel,  54  Pa.  St.  9.  ance  to  be  first  recorded    thin   is 

12.  Steele  v.  Spencer,  1  Pet.  necessary  in  order  that  it  bo 
(U.  S.)   552,  7  L.  Ed.  259;   Miller  given  priority. 

V.   Merine,   43    Fed.    261;    Coster's  13.     Webb,   Record    of  Title,    §§ 

Ex'rs  V.  Bank  of  Georgia,  24  Ala.       13-15,  165-167. 


2204  Real  Property.  [§  567 

unrecorded  conveyance,  it  being  said  that  ^'wliere, 
through  the  neglect  of  the  first  grantee  to  record  his 
deed,  a  subsequent  party  has  been  led  to  part  with  a 
valuable  consideration,  a  race  for  registry  between  the 
two  does  not  afford  a  proper  criterion  by  which  their 
rights  should  be  determined."  There  is  considerable 
force  in  this  view,  but  as  a  practical  matter  a  ''race  for 
registry"  is  not  likely  to  occur,  since  ordinarily  each 
party  is  ignorant  of  the  conveyance  to  the  other,  and 
the  subsequent  purchaser  can  ordinarily  protect  him- 
self against  the  possible  subsequent  record  of  a  prior 
conveyance  by  promptly  recording  his  own  conveyance. 
There  does  not  seem  to  be  any  particular  injustice  in 
confining  the  benefit  of  the  recording  acts  to  those  sub- 
sequent purchasers  who  act  promptly  in  placing  their 
conveyances  or  contracts  upon  the  records,  although 
such  a  provision  involves,  to  some  extent,  a  departure 
from  the  theory  that  a  purchaser  is  to  be  protected  from 
a  prior  unrecorded  conveyance  because  he  is  in  effect 
a  purchaser  without  notice  thereof.  Such  a  provision 
has  a  beneficial  operation  as  encouraging  the  prompt 
record  of  conveyances,  since  no  grantee  can  feel  as- 
sured that  a  prior  conveyance,  unknown  to  him,  may 
not  be  filed  for  record  after  the  time  of  his  purchase, 
and  before  he  files  his  own,  unless  he  does  this  im- 
mediately. 

Claimant   under   quitclaim    deed.     In   a   very 


considerable  number  of  jurisdictions  it  has  been  decided 
that  the  grantee  under  a  ''quitclaim  deed"  is  entitled, 
to  the  same  extent  as  the  grantee  in  any  other  convey- 
ance, to  the  protection  of  the  recording  laws  as  against 
a  prior  unrecorded  conveyance. ^^  These  decisions  are 
usually  in  terms  based  upon  the  broad  and  inclusive 
language  of  the  recording  law^s  and  sometimes  upon  the 

14.     Henry    Wrape   Co.    v.    Cox,  Pac.    Ill;    Marshall   v.   Pierce,    13 

122  Ark.  445,  183  S.  W.  955;  Frey  Ga.    543,    71    S.    E.    893;    Reed   r. 

V.    Clifford,    44    Cal.    335;    Kelsey  McConnell.    5    111.    117;    Smith    v. 

V.     Norris,     53     Colo.     306,     125  McClaiu,  146  Ind.  77,  45  N.  B.  41; 


§  567] 


Priorities  and  Eecording. 


2205 


fact  that  what  is  ordinarily  known  as  a  quitclain]  deed, 
that  is,  a  deed  which  in  terms  conveys  only  the  grantor's 
right  title  and  interest  in  certain  property,  v/ithout 
covenants  of  title,  does  not,  in  that  jurisdiction,  diifer 
in  its  nature  and  operation  from  one  in  terms  convey- 
ing the  property  itself.^^  In  some  states,  however,  a 
different  view  has  been  adopted,  that  a  purchaser  under 
a  quitclaim  deed  cannot  claim  as  a  bona  fide  purchaser 
for  value,  as  against  a  prior  unrecorded  deed,  or  at  least 
that  he  is  put  on  inquiry,  b}'  the  form  of  the  convey- 
ance, as  to  possible  defects  in  his  grantor's  title. ^^  In 
support  of  this  view  two  reasons  have  been  given.  One 
is  that  the  fact  that  the  vendor  offers  a  conveyance  in 
this  form  is  sufficient  to  raise  a  suspicion  in  the  mind 
of  the  purchaser  that  the  title  is  defective.  As  to  this, 
however,  it  may  well  happen  that  the  vendor  prefers 
this  form  with  an  absence  of  covenants  for  title,  merely 


Eger  V.  Brown,  77  Kan.  510,  15 
L.  R.  A.  (N.  S.)  459,  94  Pac. 
803;  Williams  v.  White  Castle 
Lumber  &  Shingle  Co.,  114  La. 
448,  38  So.  414;  Dow  v.  Whitney, 
147  Mass.  1,  16  N.  E.  722;  Fox 
V.  Hall,  74  Mo.  315,  41  Am.  Rep. 
316;  Schlott  v.  Dosh,  49  Neb.  187, 
59  Am.  St.  Rep.  531,  68  N.  W. 
386;  Brophy  Min.  Co.  v.  Mining 
Co.,  15  Nev.  101;  Wilhelm  v.  Wil- 
ken,  149  N.  Y.  447,  52  Am.  St.  Rep. 
743,  32  L.  R.  A.  370,  44  N.  E.  82; 
Morris  v.  Daniels,  35  Ohio  St. 
406;  Babcock  v.  Wells,  25  R.  I. 
23,  105  Am.  St.  Rep.  848,  54  Atl. 
596;  Shutz  v.  Tidrick,  26  S.  D. 
505,  128  N.  W.  811;  Campbell  v. 
Home  Ice  &  Coal  Co.,  126  Tenn. 
524,  150  S.  W.  427;  Cutler  v. 
James,  64  Wis.  178,  54  Am.  Rep. 
606,  24  N.  W.  874;  Eyanson  v. 
Waidlich,  57  Wash.  234,  106  Pac. 
746;  Ellison  v.  Torpin,  44  W.  Va. 
414,  30  S.  E.  183;  Olmstead  v. 
McCrory.  158  Wis.  323,  148  N. 
2  R.  P.— 64 


W.  87;  Moelle  v.  Sherwood.  148 
U.  S.  21,  37  L.  Ed.  350;  United 
States  V.  California  &  O.  Land 
Co.,  148  U.  S.  31,  37  L.  Ed.  354; 
Boynton  v.  Haggart,  57  C  C.  A. 
301,    120   Fed.    819. 

That  a  sheriff's  conveyance  of 
"all  the  right,  title,  and  interest" 
of  the  execution  debtor  in  certain 
described  land  is  effective  as 
against  a  prior  unrecorded  con- 
veyance by  the  debtor,  see  Wood- 
ward V.  Sartwell,  129  Mass.  210, 
and  Parker  v.  Prescott,  87  Me. 
444,   32   Atl.   1001. 

15.  See  cases  cited  post,  this 
section,    note   21. 

16.  Wood  V.  Holly  Mfg.  Co., 
100  Ala.  326,  46  Am.  St.  Rep. 
56,  13  So.  948;  Townley  v.  Corona 
Coal  &  Iron  Co.,— Ala.— .  77  So. 
1;  Snow  V.  Lake,  20  Fla.  656.  51 
Am.  St.  Rep.  625;  Steel  v.  Sioux 
Val.  Bank,  79  Iowa,  339.  7  L.  R. 
A.  524,  18  Am.  St.  Rep.  370.  44 
N.    W.    564;    Hannen    v.    Sciden- 


2206  Real  Pbopeety.  [§  567 

because  he  knows  nothing  about  the  title,  or  because, 
though  believing  the  title  good,  he  prefers  not  to  as- 
sume any  resiDonsibility,  and  it  seems  hardly  proper  to 
say  that  this  preference  on  the  vendor's  part  is  calcu- 
lated to  raise  a  suspicion  on  the  purchaser's  part  of  a 
defect  in  the  title.^^  Indeed,  as  has  been  forcibly  sug- 
gested by  an  able  writer,  the  fact  that  a  purchaser  ac- 
cepts a  quitclaim  deed  without  covenants  of  title,  tends 
to  indicate  his  contidence  in  the  title,  while  his  insist- 
ence on  such  covenants  might  well  indicate  the  con- 
trary.^^  It  is,  moreover,  very  questionable  whether  the 
fact  that  the  grantee  in  a  conveyance  has  reason  to  sus- 
pect that  the  grantor  has  doubts  as  to  the  validity  of 
the  title  should  of  itself  preclude  him  from  claiming  as 
a  bona  fide  purchaser  for  value,  he  having  no  clue  by 
the  aid  of  w^hich  to  determine  the  propriety  of  the  grant- 
or's doubts. 

The  other  reason  given  for  the  view  that  a  "quit- 
claim deed"  does  not  take  priority  of  a  prior  unre- 
corded conveyance,  is  that  by  a  quitclaim  deed  one  un- 
dertakes to  convey  only  his  right  or  interest  in  the 
property,  whatever  that  may  be,  and  that  it  consequent 
ly  passes  only  such  interest  as  may  remain  to  him  after 
the  execution  of  the  first  conveyance,  and  can  pass  no 
interest  as  against  this  latter,  although  this  is  not  rc- 

topf,  113  Iowa,  658,  86  N.  W.  44;  74  Tex.  453,  15  Am.  St.  Rep.  850, 

Lasley  v.  Stout,  90  Kan.  712,  136  12    S.   W.   67. 

Pac.    249;     Reed    v.    Knights,    87  17.     See  opinion  of  Field,  J.,  in 

Me.    181,    32    Atl.    870;    Peters    v.  Moelle  v.  Stierwood,  148  U.  S.  21, 

Cartier,  80  Mich.  124,  20  Am.  St.  37  L.  Ed.  350;    Babcock  v.  Wells, 

Rep.    508,    45    N.    W.    73;    Backus  25    R.    I.    23,    105    Am.    St.    Rep. 

V.   Cowley,  162  Mich.   585,   127  N.  848,    54    Atl.    596. 

W.     775;     McAdow    v.     Black,     6  18.     Rawle,  Covenants  for  Title, 

Mont.  601,  13  Pac.  377;   Wetzstein  §  29.     See  Schott  v.  Dosh,  49  Neb. 

V.   Largey,  27  Mont.   212,  70   Pac.  187,    59   Am.   St.   Rep.   531,   68  N. 

717;    Muller  x.  McCann,   50   Okla.  W.    346;     Babcock    v.    Wells,    25 

710,  151  Pac.  621;  Fowler  v.  Will,  R.    I.    23,    105   Am.    St.    Rep.    848, 

19    S.    D.    131,    117    Am.    St.    Rep.  54   Atl.   596;    Wilhelm   v.   Wilken, 

9.-58,    8    Ann.     Cas.    1093,    102    N.  149    N.   Y.    447,   32    L.   R.    A.    370, 

W.    598;    Garrett    v.    Christopher,  52  Am.  St.  Rep.  743,  44  N.  E.  82. 


§  567]  Priorities  and  Eecording.  2207 

corded.  The  soundness  of  this  reason  for  the  view  in- 
dicated appears  to  be  beyond  question,  provided  it  be 
conceded  that  the  deed  was  intended,  not  as  a  convey- 
ance of  the  property  as  such,  but  as  a  dis])osition  mere- 
ly of  what  interest  the  grantor  had  therein,  subject,  as 
it  w^ere,  to  any  prior  conveyance  made  by  him  or  another 
in  the  chain  of  title.  If  a  conveyance  is  to  be  con- 
strued as  equivalent  to  a  conveyance  of  "such  interest 
as  I  ma}^  now  have"  or  of  "such  interest  as  I  have  not 
disposed  of,"^*'  the  grantee  therein  cannot  well  claim 
any  interest  which  has  been  previously  disposed  of  by 
the  grantor,  whether  the  previous  conveyance  was  or 
was  not  recorded,  and  if  the  previous  conveyance  dis- 
posed of  all  the  grantor's  interest,  the  later  convey- 
ance would  be  nugatory.  Whether  a  conveyance  in  the 
form  of  a  quitclaim  deed  is  thus  to  be  limited  in  its 
operation  is  a  question,  it  seems,  of  the  intention  of  the 
parties  thereto,  to  be  determined  by  a  construction  of 
the  language  used  with  reference  to  the  circumstances 
of  its  execution,  including  the  usage  of  the  community 
as  to  the  employment  of  such  deeds.  This  view  has 
been  clearly  expressed  in  occasional  decisions.-*^ 

The  view  expressed  in  some  of  the  decisions  up- 
holding the  priority  of  the  subsequent  quitclaim  deed, 
that  such  a  deed  is  in  its  operation  and  effect  equiva- 
lent to  a  deed  of  grant  or  of  bargain  and  sale,^^  does 

19.  As,  for  instance,  a  con-  •  topher,  74  Tex.  435,  15  Am.  St. 
veyance  of  "Juch  interest  only  as  Rep..  850,  12  S.  W.  67;  Cutler 
they  (the  grantors)  now  have,  v.  James,  64  Wis.  173,  54  Am. 
whatever  that  may  be."  Virginia  Rep.  603,  24  N.  W.  874.  And  see 
&  T.  Coal  &  Iron  Co.  v.  Fields,  Hooper  v.  Leavitt,  109  Me.  70,  82 
94  Va.  102,  26  S.  E.  426.  And  Atl.  547;  Schmittou  v.  Dunham, 
see  Mason  v.  Black,  87  Mo.  329;  —Tex.  Civ.  App.— ,  142  S.  W.  941; 
Stephen  Putney  Shoe  Co.  v.  Rich-  Gallup  v.  Harding,  241  Fed.  858, 
mond,    F.    &    P.    R.    Co.,    116    Va.  154  C.  C.  A.  560. 

211,  81  S.  E.  93;    Eaton  v.  Trow-  21.     Robinson      v.      Clapp,      65 

bridge,  38  Mich.  454.  Conn.    365,    29    L.    R.    A.    582,    32 

20.  Brown  v.  Banner  Coal  Co.,  Atl.  939;  Frey  v.  Clifford,  44 
97  111.  214,  37  Am.  Rep.  103;  Cal.  335;  Brown  v.  Banner  etc.. 
Cook  v.  Smith,  107  Tex.  119,  174  Co.,  97  111.  214,  37  Am.  Rep.  105; 
S.    W.     1094;     Garrett    v.    Chris-  Babcock  v.  Wells,  25  R.  I.  23,  105 


2208  Eeal  Property.  [§  567 

not  necessarily  conflict  with  the  view,  above  expressed, 
that  it  is  a  question  as  to  what  is  the  meaning  of  the 
language  used.  The  courts  rendering  these  decisions 
would  hardly  assert  that  a  deed  might  not  be  so  phrased 
as  to  pass  only  such  rights  as  the  grantor  actually  has, 
that  is,  to  transfer  merely  a  chance  of  the  title,  and 
these  decisions  merely  assert  in  etfect,  it  would  seem, 
that  the  fact  that  a  conveyance  is  in  the  ordinary  form 
of  a  quitclaim  deed  does  not  of  itself  show  an  inten- 
tion merely  to  relinquish  such  claim  or  title  ss  the 
grantor  may  have.  And  the  same  may  be  said  of  the 
statutory  provisions  which  are  in  force  in  some  states, 
making  a  quitclaim  deed  equivalent  to  a  deed  of  grant 
or  bargain  and  sale.^^  These  do  no  more,  it  would 
seem,  than  create  a  presumption  that  such  a  deed  is  not 
to  be  given  a  limited  effect.  But  a  conveyance  in  terms 
of  ''such  interest  or  title  as  I  now  have,"  though  it 
might  properly  be  denominated  a  quitclaim  deed,  would 
presumably,  even  in  those  states,  not  take  priority  over 
a  prior  unrecorded  conveyance  by  the  same  grantor. 
Neither  such  a  statute,  nor  a  statute  invalidating  an 
unrecorded  conveyance  as  against  a  subsequent  pur- 
chaser, could  well  give  priority  to  a  person  who  under- 
takes to  purchase  merely  what  the  vendor  has  not  pre- 
viously disposed  of,  and  so  give  to  the  conveyance  an 
operation  not  intended  by  the  parties. 

The  tendency  of  the  courts  is  no  doubt  in  favor  of 
the  view  that  the  purchaser  under  a  quitclaim  deed  is 
entitled  to  protection  as  against  a  prior  unrecorded 
deed,  a  tendency  which  has  become  much  more  marked 
since   the  United   States   Supreme   Court   adopted  this 

Am.    St.    Rep.    848,    54    Atl.    596;  Lynn,  38  Minn.  315,  37  N.  W.  448, 

Southern  Ry.  v.  Carroll,  86  S.  C.  it   was   held   that   such   a   statute 

56,  138  Am.   St.  Rep.   1017,  67   S.  gave   the   grantee   in   a   quitclaim 

E.   4.  deed    the    right    to    claim    as    a 

22.     See   Chapman   v.    Sims,   53  6ona   fide   purchaser,    a   previous 

Miss.  154;    Smith  v.  McClain,  146  decision    denying    such    right    to 

Ind.    77,    45    N.    E.    41;    Cutler   v.  him     (Marshall     v.     Roberts,     18 

James,  64  Wis.  173,  54  Am.  Rep.  Minn.  405)   having  been  rendered 

693,  24  N.  W.  874.     In  Strong  v.  before  the  adoption  of  the  statute. 


§  567]  Priorities  and  Eecording.  2209 

view,^'^  repudiating  prior  dicta  in  that  court  to  the  con- 
trary. That  the  view  favored  by  the  later  decisions 
works  in  favor  of  justice  and  the  security  of  titles 
seems  sufficiently  apparent.  That  one  takes  a  convey- 
ance of  the  grantor's  "right,  title  and  interest"  in  cer- 
tain property,  rather  than  of  the  property  itself,  does 
not,  as  a  matter  of  fact,  ordinarily  indicate  that  the  pur- 
chaser intends  to  take,  not  a  title  such  as  appears  on 
the  records,  but  a  mere  chance  of  a  title,  subject  to  any 
unrecorded  conveyances  that  may  have  been  made  by 
the  grantor,  and  it  does  not  seem  desirable  that  the 
courts  should,  by  reason  of  the  use  of  that  language, 
impute  such  an  intention. 

In  some  of  the  states,  while  priority  is  accorded  to 
a  bona  fide  purchaser  holding  under  a  quitclaim  deed, 
the  view  has  nevertheless  been  expressed  that  the  fact 
that  one  accepts  a  quitclaim  is  evidence  tending  to  show 
a  lack  of  good  faith.^^-*^  But,  as  is  remarked  above, 
it  appears  most  questionable  whether,  as  a  practical 
matter,  this  can  properly  be  regarded  as  indicative 
of  bad  faith.-' 

It  has  usually  been  assumed,  and  there  are  express 
decisions  to  that  effect,  that,  even  if  the  grantee  in  a 
quitclaim  deed  cannot  claim  protection  as  a  bona  fide 
purchaser,  a  purchaser  from  him  for  value  holding 
under  a  warranty  deed  can  so  claim.  That,  in  other 
words,  one  may  be  a  bona  fide  purchaser  although  a 
quitclaim  deed  occurs  in  his  vendor's  chain  of  title.^^ 

23.     MoeUe  v.  Sherwood,  148  U.  Records   &   Breen,   165    Iowa,    134, 

S.  21,  37  L.  Ed.  350.  144    N.   W.   336;    Lasley  v.    Stout, 

24-26.     Moore     v.     Morris,     118  90    Kan.    712,    136    Pac.    249. 

Ark.   516,   177   S.  W.   6;    Ennis  v.  27.     Ante,  this  section,  note  18. 

Tucker,  78  Kan.   55,   130  Am.   St.  28.     United  States  v.  California 

Rep.   352.   96   Pac.   140;    Schott  v.  &  O.   Land   Co.,   148   U.   S.   31,   37 

Dosh.    49    Neb.    187,    59    Am.    St.  L.   Ed.  354;    Stanley  v.  Schwalby, 

Rep.    531,    68    N.    W.    386;    Lowry  162    U.    S.    255,    40    L.    Ed.    960; 

V   Brown,  1  Cold.  (Tenn.)  456.  See  Meikel    v.    Border,    129    Ind.    529, 

McDonald    v.    Belding,    145    U.    S.  29   N.    E.    29;    Winkler    v.    Miller, 

492,   36   L.   Ed.   788;    Mansfield   v.  54     Iowa,     476,     6     N.     W.     698; 

Dyer,  131  Mass.   200;     Boileau  v.  Hannan   v.   Seidentopf,  113   Iowa, 


2210  Real  Property.  [§  567 

The  reason  ordinarily  asserted  for  this  view  is  that 
otherwise  the  occurrence  of  one  quitclaim  deed  in  a 
chain  of  title  would  to  a  great  extent  render  the  title 
unmarketable.  But  it  is  difficult  to  see  how,  if  a  quit- 
claim deed  is  insufficient  to  give  a  good  title  to  the 
grantee  therein,  as  against  a  prior  unrecorded  convey- 
ance, such  grantee  can  give  a  good  title  to  another,  and 
thereby  divest  the  rights  of  the  grantee  under  the  prior 
conveyance.  The  practical  necessity,  if  it  be  so  re- 
garded, of  protecting  a  subsequent  claimant  under  the 
grantee  in  the  quitclaim  deed,  tends  strongly  to  indicate 
the  propriety  of  protecting  the  grantee  himself. 

A  conveyance  purporting  to  convey  land  by  a  gen- 
eral description,  such  as  "all  my  land,"  or  ''all  the  land 
which  I  have,"  or  "all  which  I  now  have,"  in  a  certain 
place,  has  been  held  not  to  take  precedence  of  a  prior 
unrecorded  conveyance  of  particular  land  in  such  place, 
the  language  used,  construed  in  connection  with  the  sur- 
rouiiding  circumstances,  showing  an  intention  to  con- 
vey only  such  land  as  the  grantor  still  retains.^^ 

659,  86  N.  W.  44;  Rich  v.  Downs,  Persons  Unknown,  43  Me.  432; 
81  Kan.  43,  25  L.  R.  A.  (N.  S.)  Fitzgerald  v.  Libby,  142  Mass. 
1035,  105  Pac.  9,  and  note;  Cul-  235,  7  N.  E.  917;  Ames  v.  Robert, 
bertson  v.  H.  Witbeck  Co.,  .92  17  N.  M.  609,  131  Pac.  994;  Mc- 
Mich.  469,  52  N.  W.  993;  Otis  Namara  Syndicate  v.  Boyd,  112 
V.  Kennedy,  107  Mich.  312,  65  N.  Va.  145,  70  S.  E.  694;  See  Hen- 
W.  219;  Marston  v.  Catterlin,  270  derson  v.  Armstrong,  128  Ga.  804, 
Mo.  5,  192  S.  W.  413;  Snowden  58  S.  E.  624;  Buttergeld  v. 
V.  Tyler,  21  Neb.  199,  31  N.  W.  Smith,  11  111.  485;  Brown  v. 
661;  Martin  v.  Ragsdale,  71  S.  Banner,  etc.,  Co.,  97  111.  214, 
C.  67,  50  S.  E.  671;  Campbell  v.  37  Am.  Rep.  105.  In  Hethering- 
Home  Ice  &  Coal  Co.,  126  Tenn.  ton  v.  Clark,  30  Pa.  St.  393,  the 
524,  150  S.  W.  427.  And  see  question  whether  such  a  con- 
Brown  V.  Nelms,  86  Ark.  368,  112  veyance  was  intended  to  convey 
S.  W.  373.  But  see  to  the  con-  only  such  land  as  the  grantor 
trary  Schmidt  v.  Musson,  20  S.  D.  still  retained  was  regarded  as  a 
389,  107  N.  W.  367;  Cook  v.  question  for  the  jury.  In  Garner 
Smith.  107  Tex.  119,  174  S.  W.  v  Boyle,  97  Tex.  460,  79  S.  W. 
1094,  1095;  Muller  v.  McCann,  50  1066,  it  was  considered  that  such 
Okla.  710,  151  Pac.  621  (semble).  a  conveyance  passed  all  land 
29.  Callanan  v.  Merrill,  81  which  on  the  records  appeared 
Iowa,   73,   46   N.   W.   753;    Coe   v.  to  belong  to  the  grantor,  an  uu- 


§  567]  Prioeities  and  Eecording.  2211 
Purchaser  from  heir  or  devisee.     It  has  oc- 


casionally been  decided  that  a  purchaser  from  an  heir 
or  devisee  takes  subject  to  a  conveyance  by  the  ancestor 
which  was  not  recorded,  on  the  theory  that  the  convey- 
ance being  valid  as  against  the  ancestor,  he  retained  no 
interest  which  could  pass  to  the  heir  or  devisee  and  con- 
sequently the  latter 's  grantee  acquired  nothing,^^  But 
usually  it  has  been  held,  more  consistently,  it  would  seem, 
with  the  policy  of  the  recording  laws,  that  a  purchaser 
from  an  heir  or  devisee  is,  like  a  purchaser  from  any 
other  person,  entitled  to  rely  upon  the  title  as  it  appears 
of  record. ^^ 

Purchaser  of  equitable  interest.     To  what  ex- 


tent one  who  acquires  an  equitable  interest  is  entitled 
to  take  advantage  of  the  failure  to  record  an  instru- 
ment earlier  in  date,  as  giving  him  priority  over  the 
earlier  instrument,  would  properly  depend  on  whether 
the  person  acquiring  the  equitable  interest  could  be  re- 
garded as  a  purchaser  or  incumbrancer  such  as  the 
statute  undertakes  to  protect.  In  several  cases  the  pur- 
chaser of  an  equitable  interest  has  been  regarded  as  en- 
titled to  protection  as  against  a  prior  unrecorded  convey- 
ance,^- while  in  one  or  two  states  the  right  to  take  ad- 
recorded  conveyance  being  regard-  Mass.  491;  First  Nat.  Bank  of 
ed  as  non  existent.  And  see  Durand  v.  Phillpotts,  155  Mich. 
Cook  V.  Smith,  107  Tex.  119,  174  331,  119  N.  W.  1;  Youngblood 
S.  W.  1094.  V.    Vastine,    46    Mo.    239;    Powers 

30.  Hill  V.  Meeker,  24  Conn.  v.  McFerran,  2  Serg.  &  R.  (Pa.) 
211;  Hancock  v.  Beverly's  Heirs,  47;  McCulloch's  Lessee  v.  Eudaly, 
6  B.  Men.  (Ky.)  531;  See  Hender-  3  Yerg.  (Tenn.)  346;  Holmes  v. 
son  V.  Armstrong,  128  Ga.  804,  58  Johns,  56  Tex.  41;  Keenon  v. 
S.  E.  624.  The  Kentucky  rule  in  Burkhardt,  —  Tex.  Civ.  App.  — , 
this  regard  was  changed  by  stat-  162  S.  W.  483;  Memphis  Land  & 
ute.  See  Dozier  v.  Barnett,  13  Timber  Co.  v.  Ford,  58  Fed.  452, 
Bush    (Ky.)    457.  7   C.   C.   A.   304. 

31.  Hallett  v.  Alexander,  50  32.  Weston  v.  Dunlap,  50  Iowa, 
Colo.  37,  34  L.  R.  A.  (N.  S.)  328,  185;  United  States  Insur.  Co.  v. 
Ann.  Cas.  1912B,  1277,  114  Pac.  Shiver,  3  Md.  Ch.  381;  General 
490,  491;  Kennedy  v.  Northup,  15  Insur.  Co.  v.  United  States  Insu.r 
in.  148;  McClure  v.  Tallman,  30  Co.,  10  Md.  517;  Tarbell  v.  West. 
Iowa,    515;    Earle    v.    Fiske,    103      86    N.    Y.    280;    Trogden    v.    Wil- 


2212  Eeal  Peopeety.  [§  567 

vantage  of  the  failure  to  record  is  apparently  confined 
exclusively  to  purchasers  of  the  legal  title. ^^ 

Lessees.      The    question   whether    a    lessee    is 

within  the  protection  of  the  recording  statute,  so  as  to 
be  able  to  assert  the  failure  to  record  a  prior  convey- 
ance, is  one  which  is  not  calculated  to  arise,  since  a 
lessee,  agreeing  merely  to  pay  a  periodical  rent,  as  is 
usually  the  case,  could  not  well  be  regarded  as  a  pur- 
chaser for  value.  If,  however,  he  does  pay  value,  he 
may  come  within  the  protection  accorded  to  purchasers 
for  value,  the  fact  that  the  estate  acquired  by  him  being 
for  years  only  instead  of  in  fee  simple  being  immate- 
rial.^* 

Claimant   under   judicial   decree.    In  at   least 

one  state  it  has  been  decided  that  one  taking  title  by 
judicial  decree  is  to  be  regarded  as  a  purchaser  for  the 
purpose  of  receiving  protection  under  the  recording 
acts  as  against  a  prior  unrecorded  conveyance.^^ 

Creditors.  The  recording  acts,  in  many  juris- 
dictions, in  terms  invalidate  an  unrecorded  instrument 
only  as  against  a  subsequent  purchaser  or  mortgagee, 
and  consequently  a  creditor  of  the  grantor  cannot  assert 
a  claim  in  priority  over  the  grantee  by  reason  of  the 
failure  to  record,  except  so  far  as  the  failure  to  record 
may  operate,  under  the  doctrine  of  estoppel  by  repre- 
sentation, to  j^reclude  the  grantee  from  asserting  his 
title  as  against  such  creditor's  claim.^^  In  some  juris- 
dictions, however,  the  statutes  expressly  require  a  con- 

liams,  144  N.  C.  192,  10  L.  R.  A.  34.     That    a    lease    is    a    "con- 

N.  S.  867,  56  S.  E.  865   (semble);  veyance"  within  the  protection  of 

Bellass     v.     McCarty,     10     Watts,  the  recording  act,   see  Waskey  v. 

(Pa.)   13;  Rhines  v.  Baird,  41  Pa.  Chambers,    224    U.    S.    564,    56    L. 

256;    Batts  v.    Scott,   37   Tex.    59;  E       885.        Contra,      Topping     v. 

Preston  v.  Nash,  76  Va.  1.  Parish,    96    Wis.    378,    71    N.    W. 

33.     Combs    v.    Nelson,    91    Ind.  367. 

123;    Wailes    v.    Cooper,    24    Miss.  35.     Wilkins    v.    McCorkle,    112 

208;       Dedeaux     v.     Cuevas,     107  Tenn.  688,  80  S.  W.  834. 

Miss.   7,   64    So.    844.  36.     Ante,  §  546,  note  80a. 


§  568]  Peiorities  and  Recording.  2213 

veyance  or  mortgage  to  be  recorded  in  order  that  it 
may  be  effective  as  against  creditors  of  the  grantor  or 
mortgagor  as  well  as  against  subsequent  purchasers.^"'^ 
Such  a  statute,  in  terms  protecting  creditors  against  un- 
recorded instruments,  is  ordinarily  construed  as  pro- 
tecting only  such  creditors  as  have,  by  attachment  or 
judgment,  acquired  a  lien  on  the  property,^*  though  oc- 
casionally the  statute  is  given  a  broader  effect,  in  favor 
of  general  creditors.^^  The  usual  construction  of  the 
statutes,  as  not  applying  to  general  creditors  unless  the 
language  clearly  shows  an  intention  to  that  effect,  is 
based  on  the  theory  that  the  purchaser,  in  failing  to 
record  his  deed,  has  done  merely  what  the  creditor  has 
done,  unduly  trusted  the  grantor,  and  that  the  equity 
of  the  creditor  is  no  higher  than  that  of  the  purchaser 
under  the  unrecorded  deed,  who,  if  deprived  of  the  prop- 
erty, would  also  be  a  creditor  of  the  grantor. 

Ordinarily  the  statutes  are  construed  to  protect 
creditors  as  to  such  claims  only  as  were  created  after 
the  execution  of  the  instrument  in  question,  it  being 
considered  that,  as  regards  claims  which  existed  pre- 
viously, they  could  not  have  suffered  by  reason  of 
the  failure  of  the  record  to  show  the  true  state  of  the 
title.-'« 

§  568.  Notice  as  substitute  for  recording.  Of  the 
statutes  in  reference  to  the  recording  of  conveyances, 

37.  The  provisions  of  the  re-  gent  v.  Priebastch,  61  Miss.  402; 
cording  acts,  as  regards  their  King  v.  Fraser,  23  S.  C.  543; 
operation  in  favor  of  creditors,  Grace  v.  Wade,  45  Tex.  522. 
are  conveniently  summarized  in  39.  See  e.  g.,  Sixth  Ward 
a  note  in  13  Columbia  Law  Rev.  Building  Ass'n  v.  Willson,  41 
at    p.     539.  Md.    506;    Henderson    v.   McGheo, 

38.  See   McGhee    v.    Importers'  6  Heisk.    (Tenn.)    55. 

&    Traders'    Nat.    Bank.    93    Ala.  40.     See,  e.  g.,  Clift  v.  Williams, 

192,    9    So.    734;    Martin    v.    Dry-  105  Ky.  559,  49  S.  W.  328;   Dyson 

der,     6     111.     187;      Campbell     v.  v.    Simmons,   48   Md.   207;    Brown 

Remaly,    112    Mich.    214.    67    Am.  v.  Brabb,  67  Mich.  17,  11  Am.  St. 

St.  Rep.  393,  70  N.  W.  432;    Hall  Rep.    549,    34    N.   W.    403.    Contra, 

V.  Sauntry,  72  Minn.  420,  71  Am.  Price    v.    Wall,    97    Va.    334,    75 

St.   Rep.   497,  75   N.   W.   720;    Nu-  Am.  St.  Rep.  788,  33  S.  E.  599. 


2214  Eeal  Peopekty.  [§  568 

some  provide  that  a  conveyance,  if  not  recorded,  shall 
be  invalid  as  against  a  subsequent  purchaser  without 
notice,  some,  that  it  shall  be  invalid  as  against  a  bona 
fide  purchaser  or  purchaser  in  good  faith,  and  some 
omit  any  reference  to  the  matter  of  notice  or  good  faith. 
The  statutes  almost  invariably,  however,  without  refer- 
ence to  the  particular  language  used,  have  received  the 
same  construction,  as  affording  protection  to  a  subse- 
quent purchaser  only  when  he  is  without  notice  of  the 
unrecorded  conveyance.^ ^  This  appears  to  be  merely  a 
logical  result  of  the  construction  put  upon  the  record- 
ing acts,  as  making  the  record  of  an  instrument  equiva- 
lent to  notice  thereof  on  the  part  of  a  subsequent  pur- 
chaser, since  this  construction  implies  that  notice  other- 
wise obtained  will  have  the  same  effect.^^  In  a  con- 
siderable number  of  cases,  however,  the  rule  that  notice 
obtained  otherwise  than  from  the  record  excludes  a  pur- 
chaser from  the  protection  of  the  act,  is  based  upon  the 
theory  that  one  taking  a  conveyance  with  the  purpose 
of  impairing  prior  rights  in  another  of  which  he  has 
notice  is  guilty  of  fraud,'*"'  a  view  which  was  originally 
adopted  from  the  decisions  of  the  English  courts  in 
connection  with  the  local  registration  acts  of  that  coun- 
try.''^ 

41.     See  cases  cited,  24  A.  &  E.  this   is  so   in  the  case   of  a  con- 

Encyc.     Law     (2d     Ed.)     131;     2  veyance    as    well    as    a    mortgage. 

Pomeroy,    Eq.   Jur.    §    649;    Webb,  Quinnerly    v.    Quinnerly,    114    N. 

Pvecord  of  Title,    §    201;    2   White  C.    145,    19    S.    E.    99;     Moore    v. 

&  T.  Lead.  Cas.  Eq.,  Judge  Hare'^  Johnson,   162  N.  C.  266,   78   S.  E. 

notes,  213.     Occasionally  the  stat-  158;    Allen    v.    Roanoke    Railroad 

ute    has    been    construed     as    so  &  Lumber  Co.,  171  N.  C.   339,   88 

absolutely    requiring    the    record  S.   E.   492.   As   also   in   Louisiana, 

of    a    mortgage    as    to    make    it  McDuffie   v.   Walker,   125  La.   152, 

invalid,    if  not  recorded,   even   as  51    So.    100;    Somat    v.    Whitmer, 

against    a    subsequent    purchaser  141  La.   235,   74   So.   916. 
having  actual  notice  thereof.  May-  42.     2     Pomeroy,     Eq.     Jur.     § 

ham    v.    Coombs,    14    Ohio,    428;  665. 

Building  Ass'n  v.  Clark,   43   Ohio  43.     2     Pomeroy,     Eq.     Jur.     §§ 

St.    427,    2    N.    E.    846;    Dodd    v.  659,  660;   2  White  &  T.  Lead.  Cas. 

Parker,    40    Ark.    536;    Moore    v.  Eq.   213;    Webb,   Record   of  Title, 

OUson,    105    Ark.    241,    150    S.    W.  §    215. 
1028.       And     in    North     Carolina  44.     See   Le    Neve   v.   Le    Neve, 


^  569] 


Pkiorities  and  Eecoeding. 


2215 


Xotice  of  one  defect  in  a  title  is  obviously  not  suf- 
ficient to  charge  one  with  notice  of  an  entirely  different 
defect.^^ 

In  states  in  which  lien  creditors  are  protected  as 
against  an  unrecorded  conveyance,^^  the  protection  does 
not  ordinarily  exist  if  the  creditor,  at  the  time  of  ac- 
quiring the  lien,  had  actual  or  constructive  notice  of  the 
convevance.^''^ 


§  569.  Information  putting  on  inquiry.  In  most 
states  it  is  sufficient,  in  order  to  deprive  a  person  of  the 
right  to  claim  as  against  a  prior  unrecorded  convey- 
ance, that  he  has  either  actual  knowledge  of  such  con- 
veyance, or  that  he  has  information  sufficient  to  put  him 
on  inquiry  in  regard  to  such  conveyance,"*^  and  this  con- 


Ambl.   436,   1   Ves.    Sr.   64;    Webb, 
Record  of  Title,   §   215. 

45.  Koons  v.  Grooves,  20  Iowa, 
373;  Thompson  v.  Lapsley,  90 
Minn.  318,  96  N.  W.  788;  Ruther- 
ford Land  &  Improvement  Co.  v. 
Sanntrock,  (N.  J.  Ch.),  44  Atl. 
938,  aff'd  60  N.  J.  Eq.  471,  46 
Atl.  648;  Todd  v.  Eighmie. 
10  N.  Y.  App.  Div.  142,  41  N.  Y. 
Supp.  1013;  Allen  v.  Anderson  & 
Anderson  (Tex.  Civ.  App.),  96  S. 
W.  54. 

4,6.     Ante,    §    567m,   note   38. 

47.  Richards  v.  Steiner,  166 
Ala.  353,  52  So.  200;  O'Rourke 
v.  O'Connor.  39  Cal.  442;  West- 
ern Chemical  Mfg.  Co.  v.  Mc- 
Caffrey, 47  Colo.  397,  107  Pac. 
1081;  McAdow  v.  Wachob,  45  Fla. 
482,  33  So.  702;  Feinberg  v. 
Stearns,  56  Fla.  279,  131  Am. 
St.  Rep.  119,  47  So.  797;  Van 
Gundy  v.  Tandy,  272  lU.  319,  111 
N.  E.  1020;  Baldwin  v.  Crow, 
86  Ky.  679,  7  S.  W.  146;  Stan- 
hope V.  Dodge,  52  Md.  483;  Priest 
V.   Rice,   1    Pick.    (Mass.)    164,    11 


Am.  Dec.  156;  Northwestern  Land 
Co.  V.  Dewey,  58  Minn.  359,  59 
N.  W.  1085;  Loughridge  v.  Bow- 
land,  52  Miss.  546;  Hutchinson 
V.  Bramhall,  42  N.  J.  Eq.  372,  7 
Atl.  873;  Ildvedsen  v.  First  State 
Bank  of  Bowbells,  24  N.  D.  227, 
139  N.  W.  105;  Britton's  Appeal, 
45  Pa.  St.  172;  Brown  v.  Sartor, 
87  S.  C.  116,  69  S.  E.  88;  Frei- 
berg V.  Magale,  70  Tex.  116,  7  S. 
W.    684. 

But  that  notice  to  the  creditor 
is  immaterial,  see  Edwards  v. 
Brinker,  9  Dana  (Ky.)  69;  May- 
ham  V.  Coombs,  14  Ohio,  428; 
Lookout  Bank  v.  Noe,  86  Tenn.  21, 
5  S.  W.  433;  Dobyns  v.  Wraing, 
82   Va.    159. 

48.  Thompson  &  Ford  Lumber 
Co.  V.  Dillingham,  223  Fed.  1000, 
139  C.  C.  A.  376;  Gamble  v.  Black 
Warrior  Coal  Co.,  —  Ala.  — ,  55 
So.  190;  White  v.  Moffett,  108 
Ark.  490,  158  S.  W.  505;    Lawton 

V  Gordon,  37  Cal.  202;    Bradford 

V  Carpenter,  13  Colo.  30,  21  Par. 
908;    Hunt   v.    Dunn,   74   Ga.    120; 


2216 


Real  Property. 


[§  569 


structioii  has  usually  been  given  to  statutes  which 
provide  that  an  unrecorded  conveyance  shall  be  void 
except  as  against  persons  having  "actual  notice."-*^ 
But  in  one  state  at  least  such  a  statutory  require- 
ment of  "actual  notice"  has  been  held  to  involve 
the  necessity  of  actual  knowledge  of  the  prior  con- 
veyance.^'^ That  information  sufficient  to  put  one 
on  inquiry  in  regard  to  an  adverse  right  is  prima 
facie  sufficient  to  charge  one  with  notice  of  such 
right  is  a  principle  well  settled  in  equity,  without  refer- 
ence to  the  recording  acts,  and  the  question  as  to  what 
constitutes  such  information  in  connection  with  these 
acts,  when  actual  knowledge  is  not  required,  is  deter- 
mined by  an  application  of  equitable  considerations. 


Erickson  v.  Rafferty,  79  111.  209; 
Young  V.  Wiley  (Ind.  App.),  72 
N.  E.  54;  Clark  v.  Holland,  72 
Iowa,  34,  2  Am.  St.  Rep.  230,  33 
N.  W.  350;  Price  v.  McDonald, 
1  Md.  403,  54  Am.  Dec.  567; 
Baldwin  v.  Anderson,  103  Miss. 
462,  60  So.  578;  Lyon  v.  Gom- 
bert,  63  Neb.  630,  88  N.  W.  774; 
Nute  V.  Nute,  41  N.  H.  60;  Wil- 
liamson V.  Brown,  15  N.  Y.  354; 
Doran  v.  Dazey,  5  N.  D.  167,  57 
Am.  St.  Rep.  550,  64  N.  W.  1023; 
Brooks  V.  Reynolds,  37  Okla.  767, 
132  Pac.  1091;  Musgrave  v.  Bon- 
ser,  5  Ore.  313,  20  Am.  Rep. 
737;  Alexander  v.  Fountain,  195 
Ala.  3,  70  So.  669;  Hingtgen  v. 
Tbackery,  23  S.  D.  329,  121  N. 
W.  839;  LeVine  v.  Whitehouse, 
37  Utah,  260,  Ann.  Cas.  1912C, 
407,  109  Pac.  2;  Lamoille  County 
Sav.  Bank  &  Trust  Co.  v.  Belden, 
90    Vt.    535,    98    Atl.    1002. 

49.  Hamilton  v.  Fowkes,  16 
Ark.  340;  Pope  v.  Nichols,  61 
Kan.  230,  59  Pac.  257;  Farris 
V.  Finnup,  84  Kan.  122,  113  Pac. 
407;     Knapp    v.    Bailey,     79    Me. 


195,  1  Am.  St.  Rep.  295,  9  Atl. 
122;  Maupin  v.  Emmons,  47  Mo. 
304;  Drey  v.  Doyle,  99  Mo.  459, 
12  S.  W.  287;  Creek  Land  &  Imp. 
Co.  V.  Davis,  28  Okla.  579,  115 
Pac.  468;  Rector  v.  Wildrick,  — 
Okla.  — ,  158  Pac.  610;  Musgrovo 
V.  Bonser,  5  Ore.  313,  20  Am. 
Rep.  737;  Manigault  v.  Lofton, 
78  S.  C.  499,  59  S.  E.  534;  Tol- 
land V.  Corey,  6  Utah,  392,  24 
Pac.  190;  Brinkman  v.  Jones, 
44  Wis.  498. 

50.  Pomroy  v.  Stevens,  11 
Mete.  (Mass.)  244;  Lamb  .  v. 
Pierce,  113  Mass.  72;  Toupin  v. 
Peabody,  162  Mass.  473,  39  N.  E. 
280.  See  Crassen  v.  Swoveland, 
22  Ind.  427;  Wade,  Notice,  §  14; 
2  White  &  Tudor,  Leading  Cas. 
Eq.   Amer.   Notes,   218. 

In  Ohio  it  was  held  that  when 
the  statute  made  an  unrecorded 
conveyance  invalid  as  against  a 
subsequent  bona  fide  purchaser 
having  "no  knowledge"  of  such 
conveyance,  the  fact  that  he 
took  under  circumstances  suffi- 
cient   to   put   him    on    inquiry   as 


§  569] 


Peiobities  and.  Recording. 


2217 


The  information  thus  sufficient  to  put  one  on  in- 
quiry may  consist  of  a  statement  made  by  the  claimant 
of  the  adverse  right,^^  or  by  a  third  person  not  pecuni- 
arily interested,  if  he  is  in  a  position  to  know  the  facts, 
and  his  statement  is  definite. ^^  The  information  must 
be  sufficient  to  furnish  a  basis  for  investigation,  and  a 
mere  rumor  or  indefinite  statement  that  there  is  an  ad- 
verse claim  is  not  sufficient  to  put  one  on  inquiry.^" 

Knowledge  by  the  purchaser  of  the  condition  of  the 
land,  as  by  the  presence  of  structures  thereon,  may  be 
sufficient  to  put  him  on  inquiry  as  to  whether  this  does 
not  indicate  the  existence  of  some  adverse  right  or  ease- 
ment.^^  The  fact  that  a  purchaser  obtains  the  property 
at  a  very  inadequate  price  is  also,  it  is  usually  consid- 
ered, a  fact  which  should  put  him  on  inquiry  as  to  the 


to  such  conveyance  did  not  cause 
him  to  take  subject  thereto. 
Varwig  v.  Cleveland,  C,  C.  &  St. 
L.  R.  Co.,  54  Ohio  St.  455,  44 
N.  E.  92. 

51.  Davis  V.  Kennedy,  105  111. 
300;  Nelson  v.  Sims,  23  Miss. 
383,  57  Am.  Dec.  144;  Epley  v. 
Witherow,  7  Watts  (Pa.)  163; 
Bell  V.  Bell,  103  S.  C.  95,  87  S. 
B.  540. 

52.  Lawton  v.  Gordon,  37  Cal. 
202;  Cox  V.  Milner,  23  111.  476; 
Curtis  V.  Mundy,  3  Mete.  (Mass.) 
405;  Jackson,  L.  &  S.  R.  Co.  v. 
Davison,  65  Mich.  416,  32  N.  W. 
726;  Jaeger  v.  Hardy,  48  Ohio 
St.  335,  27  N.  E.  863;  Butcher 
V.  Yocum,  61  Pa.  St.  168,  100 
Am.  Dec.  625;  Martel  v.  Somers, 
26  Tex.  551;  Pocahontas  Tan- 
ning Co.  V.  St.  Lawrence  Boom 
&  Manufacturing  Co.,  63  W.  Va. 
685.  60  S.  E.  890.  See  2  Pome- 
roy     Eq.    Jur.    §§    600-612. 

53.  Tompkins  v.  Henderson, 
83  Ala.  391,  .?  So.  774;  Smith 
v.  Yule.  31  Cal,  180,  89  Am,  Dec. 


167;  Hopkins  v.  O'Brien,  57  Fla. 
444,  49  So.  936;  City  of  Chicago 
V.  Witt,  75  111.  211;  Buttrick 
V.  Holden,  13  Mete.  (Mass.) 
355;  Shepard  v.  Shepard,  36 
Mich.  173;  Loughridge  v.  Bow- 
land,  52  Miss.  546;  Condit  v. 
Wilson,  36  N.  J.  Eq.  370;  Ray- 
mond V.  Flavel,  27  Ore.  219,  40 
Pac.  158;  Maul  v.  Rider,  59  Pa. 
St.  167;  Martel  v.  Somers,  26 
Tex.    551. 

54.  Webb  v.  Robbins,  77  Ala. 
176;  Fresno  Canal  &  Irrigation 
Co.  V.  Rowell,  80  Cal.  114,  13 
Am.  St.  Rep.  112,  22  Pac.  53; 
Pollard  V.  Rebman,  162  Cal.  633, 
124  Pac.  235;  Blatchley  v.  Os- 
born,  33  Conn.  226;  New  York 
N.  H.  &  H.  R.  Co.  V.  Russell,  83 
Conn.  581,  78  Atl.  324;  Ashel- 
ford  V.  Willis,  194  111.  492.  62  N.  E. 
817;  Joseph  v.  Wild,  146  Ind.  249, 
45  N.  E.  467;  Brown  v.  Honey- 
field,  139  Iowa,  414,  116  N.  W. 
731;  Kamer  v.  Bryant,  103  Ky. 
723;  46  S.  W.  14;  Illinois  Cent.  R. 
Co.  V.   Sanders,   93   Miss.   107,   46 


2218 


Eeax.  Pkopeety. 


[§  569 


possible  existence  of  an  adverse  claim.^^  As  is,  it  has 
been  decided,  knowledge  on  his  part  that  one  under 
whom  his  grantor  claims  acquired  the  property  at  an 
exceedingly  inadequate  price.^*' 

If  one  put  on  inquiry  makes  such  investigation  as 
may  reasonably  be  demanded  of  a  person  of  ordinary 
diligence  and  understanding,  and  fails  to  ascertain  the 
existence  of  the  adverse  claim,  any  inference  of  notice 
is  rebutted.^''' 

One  is,  it  has  been  held,  not  charged  with  notice  of 
an  adverse  claim  by  the  fact  that  there  are  circum- 
stances sufficient  to  put  him  on  inquiry  in  reference 
thereto,  and  that  he  makes  no  inquiry,  if  inquiry  by  him 
would  necessarily  have  been  futile. ^^    The  circumstances 


So.  241;  Seng  v.  Payne,  87  Neb. 
812,  128  N.  W.  655;  Day,  Wil- 
liams &  Co.  V.  Atlantic  &  G.  W. 
R.  Co.,  41  Ohio  St.  392;  Mc- 
Dougal  V.  Lame,  39  Ore.  212,  64 
Pac.  864;  Randall  v.  Siiverthorn, 
4  Pa.  173;  Eshleman  v.  Parkers- 
burg  Iron  Co.,  235  Pa.  439,  84 
Atl.    399. 

55.  Mason  v.  MuUahey,  145  111. 
383,  34  N.  E.  36;  Kuhn  v.  Wise, 
90  Kan.  583,  135  Pac.  571;  Atty. 
Gen.  V.  Abbott,  154  Mass.  323, 
13  L.  R.  A.  251,  28  N.  E.  346; 
Connecticut  Mut.  Life  Ins.  Co. 
V.  Smith,  117  Mo.  261,  38  Am. 
St.  Rep.  656,  22  S.  W.  623; 
Durant  v.  Crowell,  97  N.  C.  367, 
2  S.  E.  541;  Wood  v.  French, 
39  Okla.  685,  136  Pac.  734;  Hume 
V.  Hare,  87  Tex.  380,  28  S.  W. 
935;  Wisconsin  River  Land  Co.  v. 
Selover,  135  Wis.  594,  16  L.  R. 
A.  (N.  S.)  ]073,  116  N.  W.  265; 
Lufkin  Land  &  Lumber  Co.  v. 
Beaumont  Timber  Co.,  Ltd.,  151 
Fed.  740,  81  C.  C.  A.  98.  See 
Booker  v.  Booker,  208  111.  529. 
lOO  Am.  St.  Rep.  250,  70  N.  E. 
709. 


56.  Winters  v.  Powell,  180  Ala. 
425,  61  So.  96;  Gaines  v.  Sum- 
mers, 50  Ark.  322,  7  S.  W.  301; 
Hume  V.  Franzen,  73  Iowa,  25,  34 
N.  W.  490;  Webber  v.  Taylor,  2 
Jones  Eq.  (55  N.  C.)  9;  Baldwin 
V.  Anderson,  103  Miss.  462,  60 
So.  578.  See  Moore  v.  Sawyer, 
167  Fed.  826. 

As  to  whether  a  purchaser  is, 
by  notice  of  the  inadequacy  of 
the  consideration  for  the  con- 
veyance to  his  grantor,  affected 
with  notice  that  such  conveyance 
was  fraudulent  as  to  the  grant- 
ors' creditors,  see  LongbeeJ  v. 
Armstrong,  84  N.  J.  Eq.  49,  92 
Atl.    93,    and   cases   there   cited. 

57.  Thompson  v.  Pioche,  44 
Cal.  508;  Gregory  v.  Savage,  32 
Conn.  250;  Gavin  v.  Middleton, 
63  Iowa,  618,  19  N.  W.  805; 
Schweiss  v.  Woodruff.  73  Mich. 
473,  41  N.  W.  511;  WiUiamson 
V.  Brown,  15  N.  Y.  354;  Loomia 
v.  Cobb,  —  Tex.  Civ.  App.  — , 
159  S.  W.  305:  2  Pomeroy,  Eq. 
Jur.    §    G07. 

58.  Cornell  v.  Maltby,  ir,5  N. 
Y.    557,    59    N.    E.    291;     Herbert 


§  570]  Priorities  and  Recording.  2219 

may  be  such,  however,  that  a  reasonably  diligent  in- 
quiry would  necessarily  involve  the  ascertainment  of 
the  adverse  claim,  and  in  such  case  the  presumption  of 
notice  may  be  regarded  as  conclusive.-^^  Each  case 
must,  to  a  very  considerable  degree,  depend  upon  its 
own  peculiar  circumstances,  and  it  is  impossible  to 
frame  any  absolute  rule  by  which  to  determine  whether 
an  intending  purchaser  has  sufficient  information  to 
put  him  on  inquiry,  and  what  constitutes  due  and  suffi- 
cient inquiry.^*^ 

§  570.  Notice  to  agent.  The  rule  that  notice  to  an 
agent  is  notice  to  his  principal  applies  in  the  case  of  a 
purchaser  of  land  acting  through  an  agent,  and  he  may 
consequently  be  charged  with  noti<?e  of  adverse  claims 
either  by  the  agent's  actual  knowledge,  or  by  informa- 
tion acquired  by  the  latter  sufficient  to  put  him  on  in- 
quiry.^ ^  The  limitations  upon  the  general  rule  in  con- 
nection with  the  time  of  the  acquisition  of  notice  by  the 
agent,  and  the  character  of  the  transaction  in  connec- 
tion with  which  the  notice  is  received,  are  by  no  means 
settled,  and  are  properly  a  matter  for  consideration  in 
a  treatise  on  agency. 

It  is  held  by  some  courts  that  notice  acquired  by 
the  agent  before  the  beginning  of  the  agency  is  in  no 
case  to  be  imputed  to  the  principal  f-  while  other  courts 
hold  thrt  such  notice  is  to  be  imputed  to  the  princi])al, 

V.    Wagg,    27    Okla.    674,    117    Pac.  235;    Hickman   v.  Green,   123   Mo. 

209.  165;     Kimmel    v.    Scott,    34    Neb. 

59.  2  Pomeroy.  Eq.  Jur.  §  608;  493,  52  N.  W.  371;  Cowan  v. 
Kernochan  v.  Durham,  48  Ohio  Withrow,  111  N.  C.  306,  16  S. 
St.  1,  12  L.  R.  A.  41,  26  N.  E.  E.  397;  La  Forest  v.  Downer, 
982;  Ohio  River  Junction  R.  Co.  63  Ore.  176,  126  Pac.  995;  Bigley 
V  Pennsylvania  Co.,  222  Pa.  St.  v.  Jones.  114  Pa.  St.  510.  7  Atl. 
573,    72    Atl.   271.  54;    Steinman    v.   Clinchfield   Coal 

60.  Webb,  Record  of  Title,  §  Corporation,  121  Va.  611,  93  S.  E. 
227.     See  Kuhn  v.  Wise,  90  Kan.  684. 

583,  135  Pac.  571.  62.     Huffcutt,  Agency    (2d  Ed.) 

61.  Clark  v.  Fuller,  39  Conn.  §  144;  Houseman  v.  Girard  Mut. 
238;  Smith  v.  Dunton,  42  Iowa,  Building  &  Loan  Ass'n,  81  Pa 
48;    Russell  v.   Sweezey,  22  Mich.  St.    256;    Kaiiffman    v.    Robey,    60 


2220 


Real  Property. 


[^  571 


provided  the  fact  of  which  he  has  received  notice  is 
present  in  his  mind  while  acting  for  the  principal,^ "^  and 
provided  he  is  at  liberty  to  disclose  it  to  the  principal.^^ 
Notice  of  a  fact  to  the  agent  will  not  in  any  case 
bind  the  principal  if  the  fact  is  not  within  the  scope  of 
the  agency.^ ^  Nor  is  the  principal  charged  with  notice 
if  the  agent  is  acting  in  fraud  of  the  principal,  and,  to 
further  his  own  ends,  conceals  the  fact  from  the  prin- 
cipal."^ 

§  571.  Notice  from  possession. —  (a)  General  con- 
siderations. An  intending  purchaser  of  land  is,  as  a 
general  rule,  by  the  fact  that  the  land  is  in  the  posses- 
sion of  a  person  other  than  he  who  is  undertaking  to 
sell  it,  charged  with  notice  of  the  rights  of  such  person, 
to  the  extent  that  he  could,  by  reasonable  inquiry,  have 
ascertained  the  nature  of  such  rights.^'^     This  presump- 


Tex  308,  48  Am.  Rep.  264;  Mc- 
Cormick  v.  Joseph,  83  Ala.  401, 
3   So.  796. 

63.  The  Distilled  Spirits,  11 
Wall.  (U.  S.)  356,  20  L.  Ed. 
167;  Armstrong  v.  Abbott,  11 
Colo.  220,  17  Pac.  517;  Mack  v 
Mcintosh,  181  111.  633,  54  N.  E 
1019;  Constant  v.  University  of 
Rochester,  111  N.  Y.  604,  2  L 
R.  A.  734,  7  Am.  St.  Rep.  769 
19  N.  E.  631;  Arrington  v.  Ar 
rington,  114  N.  C.  151,  19  S.  E 
351;  First  State  Bank  of  Keota 
V.  Bridges,  39  Okla.  355,  135 
Pac.  378;  Mechem,  Agency,  § 
1809. 

64.  The  Distilled  Spirits,  11 
Wall.  (U.  S.)  356,  20  L.  Ed.  167; 
Littauer  v.  Houck,  92  Mich.  162, 
31  Am.  St.  Rep.  572,  52  N.  W. 
464;  Mack  v.  Mcintosh,  181  111. 
633,  54  N.  E.  1019;  Mechem, 
Agency,    §    1814. 

65.  Roach    v.    Karr,    18    Kan. 


529;  Trentor  v.  Pothen,  46  Minn. 
298,  24  Am.  St.  Rep.  225,  49 
N.  W.  129;  Tucker  v.  Tilton,  55 
N.  H.  223;  Anketel  v.  Converse, 
17  Ohio  St.  11,  91  Am.  Dec.  115; 
Wood  V.  Rayburn,  18  Ore.  3,  22 
Pac.  521;  Mechem,  Agency,  § 
1831. 

66.  Frenkel  v.  Hudson,  82  Ala. 
158,  60  Am.  Rep.  736,  2  So.  758; 
Allen  V.  South  Boston  R.  Co.,  150 
Mass.  200,  5  L.  R.  A.  716,  15 
Am.  St.  Rep.  185,  22  N.  E.  917; 
Hickman  v.  Green,  123  Mo.  165. 
29  L.  R.  A.  39,  22  S.  W.  455, 
27  S.  W.  440;  National  Life  Ins. 
Co.  of  United  States  v.  Minch,  53 
N.  Y.  144. 

67.  Kirby  v.  Tallmadge,  160 
U.  S.  379,  40  L.  Ed.  463;  Enslen 
V.  Thornton,  182  Ala.  311,  62  So. 
525;  Grant's  Pass  Land  &  Water 
Co.,  168  Cal.  456,  143  Pac.  754; 
Davis  V.  Pursel,  55  Colo.  287,  134 
Pac.    107;     Coursey    v.    Courscy, 


§  571] 


Pkiorities  and  Eecoeding. 


2221 


tion  of  notice  appears  to  exist,  even  though  the  intend- 
ing purchaser  is  a  nonresident,  or  for  other  reasons  is 
without  actual  knowledge  of  the  possession  by  a  third 
person.*^^  As  is  stated  hereafter,  however,  the  posses- 
sion may  not  be  of  such  a  character  as  to  put  the  pur- 


141  Ga.  65,  80  S.  E.  462;  Trues- 
dale  V.  Ford,  37  111.  210;  Johnson 
V.  Clark,  18  Kan.  157;  Everidge  v. 
Martin,  164  Ky.  497,  175  S.  W. 
1004;  Kushler  v.  Weber,  182 
Mich.  224,  148  N.  W.  418;  Niles 
V  Cooper,  98  Minn.  39,  13  L. 
R.  A.  (N.  S.)  49,  107  N.  W.  744; 
Strickland  v.  Kirk,  51  Miss.  795; 
Maupin  v.  Emmons,  47  Mo.  304; 
Pleasants  v.  Blodgett,  39  Neb. 
741,  42  Am.  St.  Rep.  624,  58  N. 
W.  423;  Phelan  v.  Brady,  119 
N.  Y.  587,  8  L.  R.  A.  211,  23 
N.  E.  1109;  Brown  v.  Trent,  36 
Okla.  239,  128  Pac.  895;  Ray- 
burn  V.  Davisson,  22  Ore.  242, 
29  Pac.  738;  Kerr  v.  Day,  14 
Pa.  St.  112,  53  Am.  Dec.  526; 
Johnson  v.  Olberg,  32  S.  D.  346, 
143  N.  W.  292;  Toland  v.  Corey, 
6  Utah,  392,  24  Pac.  190;  Chap- 
man V.  Chapman,  91  Va.  397, 
50  Am.  St.  Rep.  846,  21  S.  E. 
813;  Field  v.  Copping,  Agnew  & 
Scales,  65  Wash.  359,  36  L.  R. 
A.  (N.  S.)  488,  118  Pac.  329; 
Mills  V.  McLanahan,  70  W.  Va. 
288,  73  S.  E.  927;  Olmstead  v. 
McCrory,  158  Wis.  323,  148  N.  W. 
871. 

68.  King  V.  Paulk  85  Ala  1S6. 
4  So.  825;  Hamilton  v.  Fowkes, 
16  Ark.  340;  Hyde  v.  Mangan, 
88  Cal.  319,  26  Pac.  180;  Tate 
V.  Pensacola,  Gulf,  Land  &  De- 
velopment Co.,  37  Fla.  439,  53 
Am.  St.  Rep.  251,  20  So.  542; 
Tillotson  V.  Mitchell,  111  111. 
518;  Delosh  v.  Delosh,  171  Mich, 
2  R.  P.— 65 


175,  137  N.  W.  81;  Groff  v. 
Ramsey,  19  Minn.  44;  Fried- 
lander  V.  Ryder,  30  Neb.  783, 
9  L.  R.  A.  700,  47  N.  W.  83; 
Galley  v.  Ward,  60  N.  H.  33; 
Hodge  V.  Amerman,  40  N.  J.  Eq. 
99,  2  Atl.  257;  Phelan  v.  Brady, 
119  N.  Y.  587,  8  L.  R.  A.  211, 
23  N.  E.  1109;  Edwards  v.  Thomp- 
son, 71  N.  C.  177;  Ranney  v. 
Hardy,  43  Ohio  St.  157,  1  N.  E. 
523;  Hottenstein  v.  Lerch,  104 
Pa.  St.  454,  1  N.  E.  523;  Sheorn 
V.  Robinson,  22  S.  C.  32;  Bli.ss 
V.  Waterbury,  27  S.  D.  429,  131 
N.  W.  731;  Ramirez  v.  Smith,  94 
Tex.  184,  59  S.  W.  258;  Chapman 
V.  Chapman,  91  Va.  397,  50  Am. 
St.  Rep.  846,  21  S.  E.  813;  Week- 
ly V.  Hardesty,  48  W.  Va.  39, 
S5  S.  E.  880.  See  Simmons 
Creek  Coal  Co.  v.  Doran,  142  U. 
S.  417,  35  L.  Ed.  1063.  Contra, 
Harral  v.  Leverty,  50  Conn.  46, 
47  Am.  Rep.  608;  Harris  v. 
Arnold,  1  R.  I.  125. 

To  satisfy  a  requirement  of 
"actual  notice"  within  the  re- 
cording acts,  a  knowle.^go  of  the 
possession  on  the  part  of  the 
purchaser  has  been  held  to  be 
necesary.  Vaughn  v.  Tracy,  22 
Mo.  15,  25  Mo.  318,  69  Am.  Dec. 
471;  Masterson  v.  West  End 
Narrow  Guage  R.  Co..  5  !\Ic.  App. 
64,  72  Mo.  342;  Brinkman  v. 
Jones,  44  Wis.  498.  See  Porter 
V  Sevey,  43  Me.  519;  Pomroy  v. 
Stevens,   11   Mete.    (Mar.s  )    244. 


2222  Eeal  Property.  [§  571 

chaser  on  inquiry .^^  Furthermore,  even  though  the  pos- 
session was  sufficient  to  put  the  purchaser  on  inquiry, 
he  is  not  chargeable  with  notice  if  he  followed  up  the 
inquiry  in  good  faith  without  discovering  any  adverse 
interest,'^  For  instance,  if  the  person  in  possession  re- 
fuses, upon  inquiry,  to  indicate  the  nature  of  his  inter- 
est, the  purchaser  is  justified  in  carrying  through  the 
purchase  without  reference  to  any  possible  claim  in 
favor  of  such  person,'''^  or,  it  would  seem,  in  favor  of 
one  in  behalf  of  whom  the  possession  may  be  held,  the 
possessor's  landlord,  for  instance.'^^  And  if  the  person 
in  possession,  upon  inquiry  by  the  purchaser,  disclaims 
any  interest  or  anything  more  than  a  limited  interest, 
the  purchaser  is  not  charged  with  notice  of  a  greater 
interest  in  such  person  by  reason  of  his  possession  or 
occupation. ^^ 

Even  though  the  purchaser  fails  to  perform  his 
duty  of  inquiry,  he  is  not,  it  seems,  charged  with  notice 
of  the  interest  of  the  person  in  possession  if  the  in- 
quiry would  have  been  unavailing,  as  when  the  posses- 
sor is  ignorant  of  the  nature  of  his  interest,'^^  or  he  has 
previously  indicated  an  intention  to  deceive  the  pur- 
chaser as  to  the  basis  of  his  possession.'''^ 

69.  Post,    §    571(b).  with     notice     if     he     refuses     to 

70.  Hellman    v.    Levy,    55    Cal.      answer   inquiries. 

117;     Emerich     v.     Alvarado,     90  73.     Yates     v.     Hurd,     8     Colo. 

Cal.    471,   27   Pac.    356;    Austin   v.  343,     8     Pac.     575;     Barchent     v. 

Southern  Home  Building  &  Loan  Sellick,   89    Minn.    513,    95    N.   W. 

Ass'n,  122  Ga.  439,  50  S.  E.  382;  458;     Trumpower    v.    Marcey,    92 

Penrose   v.   Cooper,    88    Kan.    210,  Mich.    529,    52    N.   W.    999;    Cavin 

128    Pac.    362;    Rogers    v.    Jones,  v.  Middleton,  63  Iowa,  618,  19  N. 

8  N.  H.   264;    Huffman  v.  Cooley,  W.  805;    Losey  v.  Simpson,  11  N. 

28     S.     D.     475,     134     N.     W.     49;  J.  Eq.  246. 

Ellison  V.  Torpin,  44  W.  Va.  414,  74      Cornell    v.    Maltby,    165    N. 

30   S.   E.  185.  Y.   557.   59   N.   E.   291;    Bowles  v. 

71.  Fair  v.  Stevenot,  29  Cal.  Belt.  —  Tex.  Civ.  App.  — ,  159 
486;  Riley  v.  Quigley,  50  111.  S.  W.  885;  First  Nat.  Bank  v. 
304.  Chafee.    98    Wis.    42,    73    N.    W. 

72.  In  Fair  v.  Stevenot,  29  318;  Teal  v.  Scandinavian  Ameri- 
Cal.  486,  it  is  said  that  the  pos-  can  Bank,  114  Minn.  435,  131  N. 
session     of     an     adverse     claim-  W.    486. 

ant's     servant     does     not     charge  75.     Austin   v.    Southern    House 


§  571]  Peiobities  and  Eecoeding.  2223 

In  every  case,  it  is  conceived,  a  purchaser  put  on 
inquiry  by  another's  possession,  must  make  inquiry  of 
that  very  person  as  to  the  nature  of  his  rights,  and  he 
does  not  fulfil  his  duty  if  he  makes  inquiry  merely  of 
others."^® 

One  who  has  the  record  title  to  land  put  in  the  name 
of  another,  in  order  to  conceal  his  own  interest  therein 
from  his  creditors,  has  no  equity,  it  has  been  held, 
which  he  can  assert  as  against  an  innocent  purchaser 
from  such  other,  even  though  he  is  himself  in  the  actual 
possession  of  the  propertyJ'^ 

(b)    Character  of  the  possession.     What  acts 

and  circumstances  may  or  may  not  constitute  posses- 
sion for  this  purpose  are  necessarily  varied,  and  depend 
to  some  extent  upon  fhe  nature  and  locality  of  the  prop- 
erty, the  use  to  which  it  may  be  applied,  and  the  situa- 
tion of  the  parties.'^^  It  is,  in  the  final  analysis,  a  ques- 
tion of  fact  in  each  case,  whether  there  is  such  posses- 
sion of  the  property  by  A  as  to  affect  B  with  notice 
thereof,^^  and  that  this  is  so  must  be  recognized  in  seek- 
ing to  harmonize  the  numerous  decisions. 

Building    &   Loan    Ass'n,    122    Ga.  78.     Simmons    Creek    Coal    Co. 

439,    50    S.    E.    382.  v.    Doran,    142    U.    S.    417,    35    L. 

76.  Lestrade  v.  Barth,  19  Cal.  Ed.  1063;  Morrison  v.  Kelly,  22 
660;  Williams  v.  Brown,  14  111.  111.  610,  74  Am.  Dec.  169.  See 
200;  Allen  v.  Caldwell,  55  Mich.  also  Tate  v.  Pensacola,  Gulf, 
8,  20  N.  W.  692;  Sailor  v.  Hert-  Land  &  Development  Co.,  37  Fla. 
zcg,  4  Whart.  (Pa.)  259;  Can-  439,  53  Am.  St.  Rep.  251,  20  So. 
field  V.  Hard,  58  Vt.  217,  2  Atl.  542;  Bolland  v.  O'Neal.  SI  Minn. 
136.  15,    83    Am.    St.    Rep.    362.    83    N. 

77.  Gill  V.  Hardin,  48  Ark.  W.  471.  See  Eraser  v.  Fleming, 
409,  3  S.  W.  519;  Groton  Sav.  190  Mich.  238,  157  N.  W.  269. 
Bank  v.  Batty,  30  N.  J.  Eq.  126;  79.  Emeric  v.  Alvarado.  90 
Alliance  Trust  Co.  v.  O'Brien,  32  Cal.  444,  471,  27  Pac.  356;  Helm 
Ore.  333,  51  Pac.  640.  But  the  v.  Kaddatz,  107  111.  App.  413; 
creditors  might,  it  seems,  assert  Hall  v.  Hilley,  134  Ga.  77,  67  S. 
that  the  purchaser  was  charged  E.  428;  Hottenstein  v.  Lerch, 
with  notice  by  the  possession.  104  Pa.  St.  154;  Betts  v.  Letcher, 
Hood  V.  Fahnestock,  1  Pa.  St.  1  S.  D.  182,  46  N.  W.  193; 
470.  Ponton  v.  Ballard,  24  Tex.  619. 


•»")^ 


Eeal  Propebty, 


r^  571 


The  ix)Sse5sion.  to  charge  a  purchaser  with  notice. 
must,  it  is  said,  be  an  actual  and  visible  possession,^** 
by  which  is  meant,  apparently,  merely  that  the  posses- 
sion must  be  sufficiently  open,  continuous  and  unambig- 
uous in  character,  to  indicate  to  the  purchaser,  if  he 
views  the  property,  that  some  person  other  than  the 
vendor  claims  possession  thereof.*^ 

It  appears  to  be  generally  recognized  that  the  acts 
of  possession  need  not  extend  to  the  entire  tract  sold, 
in  order  to  charge  the  purchaser  with  notice  of  the  ad- 
verse claim,  such  acts  as  to  part  being  regarded  as  suffi- 
cient to  raise  a  duty  of  inquiry  as  to  the  extent  and 
source  of  the  possessor's  rights.--  And  so  occupancy  of 
part  of  a  building  has  ben  regarded  as  sufficient  to  put  on 
inquiry  a  purchaser  of  the  building.-^  If,  however,  the 
vendor  is  actually  in  occupation  of  part  of  the  tract 


80.  Simmons  Creek  Coal  Co. 
T.  Doran.  142  U.  S.  417,  S5  L. 
E<L  106-3;  Taylor  r.  Central  Pac. 
IL  Co.,  67  CaL  61i,  8  Pac.  436; 
Tate  T.  Pensacola,  Gulf,  Land  k 
Development  Co,  37  Fla.  439.  53 
Am.  St.  Rep.  251,  20  So.  542; 
Mason  t.  Mullahy,  145  111.  383, 
34  N.  E.  36;  ilcMechan  t.  Grtf- 
fing,  .3  Pick.  (Mass.)  149,  15 
Am.  Dec.  198;  Holland  t.  Brown, 
140  N.  Y.  344,  35  N.  K  577; 
Ranney  t.  Hardy,  43  Ohio  St. 
157.  1  X.  E.  523;  Martin  t. 
Jackson.  27  Pa.  St.  504,  67  Am. 
Dec.    4S9. 

81-  See  Rankin  Mfg.  Co.  v. 
Bishop,  137  Ala.  271,  .34  So.  991; 
Jerome  t.  Carbonate  Nat.  Bank, 
22  Colo.  37,  43  Pac  215;  Smith 
V.  Gibson,  15  Minn.  89;  Cox  v. 
Devinney,  65  N.  J.  L.  389.  47 
Atl.  569;  Brown  v.  Volkening, 
64  X.  Y.  76;  Raybum  v.  Davis- 
son,  22  Ore.  242;  Ranney  v. 
Hardy,  43  Ohio  St.  157,  1  N. 
E.   523;    Meehan  t.    Williams,   48 


I*a.  238;  Billington's  Lessee  v. 
Welsh,  5  Binn.  (Pa.)  132,  5  Am. 
Dec.    406. 

82.  Smith  v.  Gale.  144  U.  S. 
509,  36  L-  Ed.  521;  Gale  v.  Shil- 
lock,  4  Dak.  1S2.  29  N.  W.  661; 
Small  V.  Stagg.  95  IlL  39;  Mal- 
lett  V.  Kaehler.  141  IlL  70,  30 
N.  E.  549;  Watters  v.  Ccnneilv. 
.59  Iowa.  217,  13  N.  W.  32;  Hol- 
land V.  Brown,  140  N.  Y.  344,  35 
N.  E.  577;  Day  v.  Atlantic  k 
G.  W.  R.  Co.,  41  Ohio  St.  392; 
Sweatman  v.  Edmunds,  28  S.  C. 
58.  62,  5  S.  E.  165;  Huffman  v. 
Cooley,  28  S.  D.  475.  134  N.  W. 
49;  Ramirez  v.  Smith,  94  Tei. 
184,  59  S.  W.  258;  Dennis  v. 
North  Pac.  R.  Co.,  20  Wash. 
320.  55  Pac.  210;  Wickes  v.  Lake, 
25  Wis.  71. 

83.  Boyer  v.  Chandler,  160  111. 
394,  32  L.  R.  A.  113,  43  N.  E. 
803;  Truth  Lodge  No.  213,  A.  F. 
#■  A-  M.  V.  Barton,  119  Iowa, 
230,  97  Am.  St.  Rep.  303,  93  N. 
N.    W.    106. 


§  571]  Priorities  and  Kecording.  2225 

sold,  the  possession  by  a  third  person  of  the  other  part 
would  not  usually  be  calculated  to  put  the  purchaser  on 
inquiry  as  to  such  third  person's  rights. ^^ 

The  possession,  to  put  a  purchaser  on  inquiry,  must, 
it  is  said,  be  actually  existent  at  the  time  of  the  pur- 
chase, and  the  purchaser  is  not  affected  by  a  possession 
which  has  been  abandoned  before  that  time.®^  But  the 
courts  do  not  regard  actual  personal  occupation  of  the 
land  as  necessary  to  constitute  possession  for  this  pur- 
pose, it  being  usually  considered  sufficient  that  an  in- 
spection of  the  land  would  indicate,  or  at  least  suggest, 
that  it  is  habitually  utilized  for  agricultural  or  other 
purposes,  even  though  no  person  is  actually  in  the  oc- 
cupation of  the  land  at  the  time.^®  Some  of  the  courts 
have,  it  is  conceived,  gone  somewhat  far  in  regarding  a 
purchaser  as  put  on  inquiry  with  reference  to  an  ad- 
verse claim  by  the  existence  of  indications  on  the  land 
that  it  has  been  utilized  in  a  particular  way.  That,  for 
instance,  crops  have  been  raised  on  the  premises,  that 
timber  has  b^en  taken  therefrom,  or  that  the  land  has 
been  fenced,  furnishes  practically  no  information  to  the 
purchaser  as  to  an  adverse  claim,  and  to  hold  that  it 

84.  Jeffersouville,  etc.,  R.  Co.  Watts  &  S.  (Pa.)  474;  King  v. 
V.  Oyler,  82  Ind.  394;  Cincinnati,  Porter,  —  W.  Va  — ,  71  S.  E. 
I.  &  St.  L.  &  C.  R.  Co.  V.  Smith,      202. 

127   Ind.   461,   26   N.   E.   109;    Bil-  86.     Simmons    Creek    Coal    Co. 

lington   V.   Welsh,    5    Binn.    (Pa.)  v.    Doran,    142    U.    S.    417,    35    L. 

132,   6   Am.   Dec.   406.     See  Wade  Ed.    1063;    Sloss-Sheffieid    Steel-  & 

V.    Hiatt,    32    N.    C    302;    Robert-  Iron    Co.    v.    Taff,    178    Ala.    .^82, 

son  V.  Smith,  191  Mich.  660,  Ann.  59    So.    658;    Colburn   v.    Gilcrest, 

Gas.    1918D,    145,    158   N.    W.    ?('7.  6C  Colo.  92,  151  Pac.  909;    Thom- 

85.  O'Neal  v.  Prestwood,  153  as  v.  Burnett,  128  111.  37,  4  L. 
Ala.  443,  45  So.  251;  Aden  v.  R.  A.  222,  21  N.  E.  352;  Rodgers 
Vallejo,  139  Cal.  165,  72  Pac.  v.  Turpin,  105  Iowa,  183,  74  N. 
905;  Hewes  v.  Wiswell,  8  Me.  W.  925;  Kendall  v.  Lawrence,  22 
94;  Roussain  v.  Norton,  53  Minn.  Pick.  (Mass.)  540;  Krider  v. 
560,  55  N.  W.  747;  Hiller  v.  Lafferty,  1  Whart.  (Pa.  I  303: 
Jones.  66  Miss.  636.  6  So.  465;  Chapman  v.  Chapman,  91  Va. 
Bingham  v.  Kirkland,  34  N.  J.  397,  50  Am.  St.  Rep.  846,  21  S. 
Eq.    229;    Bost    v.    Setzer,    87    N.  E.    813. 

C.     187;      Boggs     v.     Warner,     6 


2226  Real  Property.  [§  571 

X^iits  him  on  inquiry  as  to  such  a  claim  means  that  he 
must,  in  the  first  place,  assume  that  such  prior  use  of 
the  land  was  by  some  person  other  than  his  vendor  or 
the  latter 's  predecessor  in  title,  and  must  then,  by  in- 
quiry of  the  owners  of  neighboring  property,  endeavor 
to  ascertain  the  identity  of  such  person,  and,  having  as- 
certained his  identity,  must  inquire  as  to  the  character 
of  his  claim.  This  occasionally  places  a  heavy  burden 
upon  the  intending  purchaser,  for  the  protection,  or- 
dinarily, of  one  whose  adverse  claim  might,  with  proper 
diligence,  have  been  made  a  matter  of  record. 

In  case  only  an  easement  in  the  land  is  claimed, 
there  will  not  be  any  actual  possession  of  the  land  by 
the  claimant,  but  merely  an  exercise  of  the  easement 
thereover,  which  exercise  will  ordinarily  be  intermittent 
in  character.  In  such  case  the  notice  will  be  based,  strict- 
ly speaking,  not  on  possession  of  the  land,  but  on  the 
exercise  of  the  easement  over  the  land  with  sufficient 
constancy  or  continuity  to  inform  one  observing  the 
land  of  its  exercise,*'^  or,  quite  frequently,  upon  the 
existence  of  improvements  or  structures  on  the  land 
adapting  it  for  the  exercise  of  the  easement.*^^ 

(c)     Possession   consistent   with   record   title. 


One  limitation  upon  the  effect  of  possession  as  notice, 
which  has  been  recognized  in  a  number  of  states,  is 
that  the  possession  of  one  who  has  a  title  of  record  is 
not  notice  of  any  title  in  him  other  than  that  which 
appears  of  record,  the  purchaser  being  regarded  as 
justified  in  attributing  his  possession  to  such  record 
title.^^^     It  has  accordingly  been  quite   frequently  de- 

87.     Franklin    v.    Pollard    Mill  S.   C.   228,   51    S.   E.    689. 

Co.,    88   Ala.   318,   6   So.   685;    Mc-  88.     Ante,    §    569.    note    54. 

Lure    V.    Keon,    25    Colo.    284,    53  88a.     Kirby    v.    Tallmadge,    IGO 

Pac.    1058;     Rock    Island    &    Pac.  U.    S.   379,   40   L.    Ed.   463;    Schu- 

R.    Co.    V.    Dimick,    144    111.    628,  macher  v.  Truman,   134   Cal.   430, 

19    L.   R.    A.    105,    32    N.    E.    291;  66    Pac.    591;    Crooks   v.   Jenkins. 

Campbell  v.  Indianapolis  &  V.  R.  124   Iowa,   317,   104   Am.    St.   Rep. 

Co.,    110    Ind.    490,    11   N.   E.    482;  326,    100    N.    W.    82;     Red    River 

Harman    v.    Southern    R.    Co.,    72  Valley    Land,    etc.,    Co.    v.    Smith, 


§  571] 


Priorities  and  Eecording. 


2227 


cided  that  one  purchasing-  an  undivided  interest  from 

A,  who  appears  of  record  to  be  a  tenant  in  common  with 

B,  is  not,  by  the  fact  that  B  has  the  sole  possession, 
chargeable  w^ith  notice  that  A  has  previously  transferred 
his  interest  to  B,^^  it  being  well  recognized  that  one 
tenant  in  common  may  hold  possession  in  behalf  of  all 
of  the  tenants,^*^  and  the  possession  of  B  being  conse- 
quently consistent  with  the  existence  of  an  undivided 
interest  in  A,  as  indicated  by  the  records.  And  there 
is  a  decision  that  if  a  mortgagee,  having  the  legal  title 
of  record,  and  so  entitled  to  possession,  takes  a  con- 
veyance of  the  equity  of  redemption,  which  he  fails  to 
record,  a  subsequent  purchaser  from  the  mortgagor- 
will  not,  by  the  mortgagee's  possession,  be  charged  with 
notice  of  such  conveyance,^ ^  such  possession  being  con- 
sistent w4th  the  equitable  title  of  record  being  in  the 
mortgagor.'^^     ^j^^j  when  the  title  to  land  appeared  of 


7  N.  D.  236,  74  N.  W.  194; 
Woods  V.  Farmere,  7  Watts 
(Pa.)    382,  32  Am.  Dec.  772. 

89.  Stortlitz  v.  Chapline,  71 
Ark.  31,  70  S.  W.  465;  Schu- 
macher V.  Truman,  134  Cal.  430, 
66  Pac.  591:  Tyler  v.  Johnson, 
61  Fla.  730,  55  So.  870;  May  v. 
Sturdivant,  75  Iowa,  116,  9  Am. 
St.  Rep.  463,  39  N.  W.  221; 
Button  V.  McReynolds,  31  Minn. 
66,  16  N.  W.  468;  Jones  v. 
Brenizer,  70  Minn.  525,  73  N.  W. 
255;  Mullins  v.  Butte  Hardware 
Co.,  25  Mont.  525,  87  Am.  St. 
Rep.  430,  65  Pac.  1004;  Ilvedsen 
V.  First  State  Bank,  24  N.  D. 
227,  139  N.  W.  105;  Farmers', 
etc.,  Bank  v.  Wallace,  45  Ohio 
St.  152,  12  N.  E.  439;  Martin  v. 
Thomas,  56  W.  Va.  220,  49  S.  E. 
118.  See  Kendall  v.  Lawrence, 
22  Pick.  (Mass.)  542:  Peck  v. 
Williams,  113  Ind.  250,  15  N.  E. 
270. 


So  it  has  been  held  that  the 
possession  of  the  lessee  of  one 
who  appears  by  the  records  to 
be  a  tenant  in  common  merely, 
is  consistent  with  the  record 
title  of  the  other  tenant  in 
common,  and  does  not  put  a 
purchaser  of  the  latter's  un- 
divided interest  on  inquiry.  Schu- 
macher V.  Truman,  134  Cal.  430, 
66    Pac.    591. 

The  possession  of  one  cotenant 
can  obviously  not  operate  aa 
notice  of  the  fact  that  the  inter- 
est of  his  cotenant  has  been 
transferred  to  a  third  person. 
Williams  v.  Sprigg,  6  Ohio  St. 
585;  Wilcox  v.  Leominster  Nat. 
Bank,  43  Minn.  541,  19  Am.  St. 
Rep.    259,    45   N.    W.    1136. 

90.  Ante,   §    513(h). 

91.  Plumer  v.  Robertson,  6 
Serg.   &   R.    (Pa.)    179. 

92.  Pmt,   §   612. 


222S  Real,  Property.  [§  571 

record  as  being  vested  in  three  persons  in  equal  undi- 
^dded  shares,  without  mention  of  any  partnership 
relation  between  them,  a  purchaser  from  one  of  them 
was  regarded  as  justified  in  assuming  that  he  had  a 
one-third  beneficial  interest,  although  the  land  was  oc- 
cupied for  the  purposes  of  a  partnership  consisting  of 
such  persons,  and  the  vendor's  beneficial  interest  was 
less  than  a  third.^^  It  has  likewise  been  decided  that, 
if  land  sold  under  a  judgment  against  A  is,  at  the  time 
of  the  sale,  in  the  possession  of  B,  who  claims  under  a 
recorded  deed  which  was  executed  after  the  judgment, 
the  purchaser  is  justified  in  imputing  B's  possession  to 
such  deed,  and  not  to  a  possible  pre-existing  interest 
in  him,  not  apparent  of  record.***  Occasionally,  however, 
this  limitation  upon  the  effect  of  possession  as  notice 
has  not  been  accepted,^'^  and  such  a  view  appears  not  to 
be  entirely  without  justification. 

The  theory  at  the  base  of  the  general  rule  of  notice 
from  possession  is  that  the  purchaser,  as  he  knows  or 
ought  to  know  of  the  fact  of  possession  by  a  third  per- 
son, is  under  an  obligation  to  make  inquiry  of  that 
person  as  to  the  character  and  extent  of  the  latter 's 
rights.  The  limitation  just  referred  to,  upon  the  rule, 
in  effect  relieves  the  purchaser  from  such  an  obligation 
to  make  inquiry  of  the  person  in  possession,  if  a  title 
in  the  latter  appears  of  record  sufficient  to  explain  his 
possession.     This  asserted  limitation  upon  the  general 

93.  Adams  v.  Bradley,  12  land  v.  Corey,  6  Utah,  392,  24 
Mich.   346.  Pac.    190.      See   Carr   v.    Brennan, 

94.  Rogers  v.  Hussey,  36  166  111.  108,  57  Am.  St.  Rep. 
Iowa,  664;  Lance  v.  Gorman,  136  119,  47  N.  E.  721;  Ellison  v. 
Pa.  200,  20  Am.  St.  Rep.  914,  20  Torpin,  44  W.  Va.  415,  438,  per 
All.    792.  Brannon,    P.   J. 

95.  Farmers'  Nat  Bank  v.  A  purchaser  is  not  justified 
Sperling,  113  111.  273;  Weisberger  in  ascribing  the  possession  to  a 
V.  Wisner,  55  Mich.  246,  21  N.  recorded  deed  made  to  the  pos- 
W.  331;  Schmidt  v.  Steinbach,  sessor  if  he  knows  that  deed  to 
193  Mich.  640,  160  N.  W.  448;  be  void.  Simonson  v.  Manson, 
Collum  V.  Sanger,  98  Tex.  62,  82  36  S.  D.  167,  153  N.  W.  1020. 

S.    W.    459,    83    S.    W.    184;     Tol- 


§  5/1]  Priorities  and  Eecording. 


2229 


nile  has,  by  a  judge  of  pre-eminent  ability,^^  been  based 
on  a  quasi  estoppel,  it  being  said  by  him  that  the  person 
111  possession,  m  recording  one  only  of  his  titles,  does 
an  act  which,  by  reason  of  its  tendency  to  mislead,  ought 
to  postpone  his  other  title  in  favor  of  a  purchaser,  and 
this  is  the  course  of  reasoning  indicated  in  other  cases 
on  the  subject.    But  it  may  happen  that  the  person  in 
possession  is  not  responsible  for  the  fact  that  one  of 
his  titles  IS,  and  that  the  other  is  not,  recorded.     One 
ot  his  titles  might  be  of  a  character  not  susceptible  of 
record  as  when  it  is  based  on  an  oral  transaction  or  on 
an  instrument  not  duly  acknowledged.^^    And  conceding 
tha    the  record  of  the  one  title  alone  is  calculated  to 
mislead  a  subsequent  purchaser,  it  may  happen   that 
not  having  examined  the  records  before  ^Durchasing,  he 
IS  not  actually  misled.     Is  he  protected  in  such  ca.e 
tLT7,^'^^'l  unrec^orded  title  of  the  person  in  posses- 
sion/    It  IS   to  be  borne  in  mind,  moreover,  that  the 
-recording   of  one   only    of   two   titles   which   one   may 
have,  can  properly  be  characterized  as  misleading  only 
upon  the  assumption  that  it  is  calculated  to  lead  the 
subsequent    purchaser     to     refrain     from     makino-     in- 
quiries   as   to   the   rights   of  the   possessor,  and  wheth- 
er it  IS   so  calculated  is   open   to   question.     It  might 
be  suggested  that  a  reasonably  prudent  person,  in  pur- 
chasing from  A   an  interest  in  land  which  is  in  the  pos- 
session of  B,  would  make  inquiry  of  B  as  to  his  rights 
even  though  there  is  of  record  a  title  in  B   which   i.' 
not  exclusive  of  the  asserted  title  in  A.     The  fact  that 
there  IS  such  a  title  of  record  in  B  makes  it  no  more 
difficult  for  the  purchaser  to   make   inquiry  as  to  the 

9>l     Gibson.  C.  J.,  in  Woods  v.      partly     executed,     which     is     not 
SeT^r    .  .  "^T-     ^"""-^     '''■      ^"--Ptible    Of    registration;     yet 

"q7      ;       ^;     ,  0".    why   register    another,    when, 

Wa  ts    rPaT'38'2  "p.f^^'^^^L^'   J  ''    "^'^h-'-    -ere    registered,    the 

Watts    (Pa)     382,    Gibson,    C.    J.  possession     would     be     notice     of 

says    that      an    exception    to    this  both."     Bnt   this   omits   to    reoog- 

m|ght   be   th«   case    of   possession  „ize     the     possibility     that     the 

taken     under     a     parol     contract  person    in    possession    may    have 


2230  Real  Pkoperty.  [§  571 

rights  of  B.  Furthermore,  if  a  purchaser  is  justified 
in  refraining  from  inquiry  as  to  the  rights  of  the  per- 
son in  possession  merely  because  such  person  has  a 
title,  which  appears  of  record,  to  which  his  possession 
may  be  attributed,  it  is  difficult  to  see  why  he  is  not  so 
justified  when  such  person  has  such  a  title,  not  of 
record,  of  which  the  purchaser  has  notice.  But  the 
imputation  of  such  an  effect  to  an  unrecorded  title  is 
practically  denied  by  the  decisions,  hereafter  referred 
to,**^  that  the  possession  of  a  tenant  under  a  lease  is 
notice  of  rights  in  such  tenant  not  based  on  the  lease. 
The  tenant  in  possession  under  a  lease  has  a  title, 
namely  the  lease,  adequate  to  explain  his  possession,  and 
the  purchaser  has,  in  the  ordinary  case,  knowledge  of 
such  title,  and  yet  it  is  held  that  the  possession  of  the 
tenant  is  notice,  not  only  of  his  interest  under  the 
lease,  but  of  any  other  interest  which  he  may  have. 

(e)    Joint  possession  or  occupation.    The  cases 

not  infrequently  assert  that  the  possession  of  a  third 
person,  in  order  to  affect  a  purchaser  with  notice  of 
such  person's  claim,  must  be  "exclusive."  Just  what 
this  means  is  by  no  means  clear.  Legal  possession  is 
in  its  nature  exclusive  of  others,  the  only  case  in  which 
the  possession  of  one  person  is  not  exclusive  of  others 
being  when  there  is  a  joint  possession  in  him  and  an- 
other or  others.  The  statement  referred  to  probably 
means  that  the  possession  must  be  an  actual  legal  pos- 
session, and  not  a  mere  occupation  under  a  license,  in 
connection  with  possession  in  another. 

When  two  persons  are  together  in  the  possession 
of  property,  a  person  purchasing  the  property  from 
a  third  person,  not  in  possession,  would  ordinarily  be 
put  on  inquiry  as  to  the  claims  of  such  joint  possessors. 
If  one  person  is  in  possession,  and  another  person  is 
apparently  associated  w^ith  him  in  the  use  of  the  prop- 
registered  his  one  title  without  of  registration, 
knowing    that    he    might     subse-  58.     Post,  §  571(f),  note  20. 

quently  acquire  another  incapable 


§  571]  Priorities  and  Recording.  2231 

erty,  as  a  member  of  his  family,  for  instance,  but.  not 
as  sharing  in  the  legal  possession,  a  purchaser  froni 
a  third  person  would  presumably  be  put  on  inquiry  as 
to  the  rights  of  the  former  but  not  of  the  latter. 

There  are  a  number  of  decisions  to  the  effect  that 
if  two  persons,  A  and  B,  are  in  occupation  of  land,  and 
B  is  merely  a  lodger  with  A,  or  is  a  subordinate  mem- 
ber of  A's  family,  or  otherwise  A  appears  to  be  in 
control  of  the  land,  the  presence  of  B  upon  the  land  is 
not  such  possession  on  his  part  as  to  charge  a  purchaser 
from  A  with  notice  of  an  adverse  interest  in  B.^'^  In 
such  case  B  is,  in  the  ordinary  case,  and  strictly  speak- 
ing, not  in  possession,  and  furthermore  the  fact  that 
he  has  apparently  no  powers  of  control  serves  to  indi- 
cate that  he  has  no  actual  interest,  in  the  land,  but  is 
there  merely  in  the  right  of  A,  and  by  his  permission. 
On  the  other  hand,  a  purchaser  from  B,  would,  it  ap- 
pears, by  the  possession  of  A,  be  put  on  inquiry  as  to 
the  rights  of  A.^  If  the  two  persons  on  the  land  ap- 
pear to  have  equal  rights  of  control  thereover,  a  pur- 
chaser from  either  would,  it  is  conceived,  be  put  on 
inquiry  as  to  the  rights  of  the  other,  the  presumption 
being  that  each  has  a  joint  interest. 

In  perhaps  a  majority  of  the  decisions  as  to  the 
effect  of  joint  occupation,  as  charging  a  purchaser  from 
one  occupant  with  notice  of  the  other's  claim,  reference 
is  made  to  the  matter  of  record  title,  it  being  said  that 
if,   of  two   joint   occupants,  one   alone   has   the   record 

99.     Townsend  v.  Little,  109  U.  N.   W.    843,    111   N.   W.   343;    BeU 

S      504,     510,     27     L.     Ed.     1012;  v.   Twilight,   22   N.   H.    500    (scm- 

Kirby    v.    Tallmadge,    160    U.    S.  ble) ;    Rankin    v.    Coar,    46    N.    J. 

379,  40  L.  Ed.  463;    Adams-Booth  Eq.   566,  11   L.  R.  A.  661,  22  Atl. 

Co.  V.  Reid,  112   Fed.   106;    Miinn  177;    Patterson    v.    Mills,    121    N. 

V.    Achey,    110    Ala.    628,    18    So.  C.    258;    Atteberry    v.    O'Neil,    42 

299;    Rubel    v.    Parker,    107    Ark.  Wash.   487,  85  Pac.  270.     But  see 

314,    155    S.    W.    114;    Goodwynne  Wyatt    v.    Elam,    2.3    Ga.    201.    68 

V.    Bellerby,    116    Ga.    901,    43    S.  Am.    Dec.    518. 

E.    275;    Harris   v.   Mclntyre,    118  1.     Watson   v.   Murray,  54   Ark. 

111.     275,     8     N.     E.     182;     Nabel-  499,    16    S.   W.   293. 
spach  V.  Shaw,  146  Mich.  49;{,  109 


2232  Real  Propeety.  [<S,  571 

title,  a  purchaser  has  the  right  to  assume  that  the  other 
lias  no  title,^  reference  being  also  iisiially  made,  by  way 
of  analogy,  to  the  doctrine  before  referred  to,"  that  if 
a  person  in  possession  has  a  title  of  record,  his  posses- 
sion may  be  imputed  to  that  title.  It  does  not  seem, 
however,  that  the  question  of  record  title  should  ordi- 
narily affect  the  question  of  the  sufficiency  of  the  pos- 
session to  operate  as  notice.  If  both  A  and  B  are 
occupying  the  premises,  but  A  appears  to  be  in  con- 
trol and  B  to  be  on  the  premises  in  a  merely  sub- 
ordinate capacity,  a  purchaser  from  B  should,  it  is 
conceived,  inquire  as  to  A's  interest  in  the  premises, 
even  though  B  has  the  record  title,  while  a  purchaser 
from  A  should  not,  in  such  case,  be  put  on  inquiry  as 
to  B's  interest,  even  though  neither  has  the  record 
title.  Perhaps  when  both  A  and  B  appear  to  have 
equal  powers  of  control,  a  purchaser  might  be  justified 
in  assuming  that  the  one  who  has  the  record  title  is  the 
one  actually  in  possession,  and  so  be  relieved  from  in- 
quiring as  to  the  rights  of  the  other,*  but  even  in  such 
case,  it  would  seem,  a  purchaser  from  eitlier  might 
reasonably  be  required,  without  reference  to  the  record 
title,  to  inquire  by  what  right  the  other  exercises  any 
control  over  the  property 

Actual  possession  by  one  of  two  persons  having 
joint  interests  would  seem  to  be  sufficient,  ordinarily,  to 
affect  a  purchaser  from  a  stranger  with  notice  of  the 
individual  interest  of  the  other  of  -such  persons.^     The 

2.     See  Kirby  v.  Talmadge,  160  Bank    v.     Wallace,    45     Ohio     St. 

U.    S.    379,    40   L.    Ed.   463;    Munu  ±d2,  12  N.  E.   439. 

V.    Achey,    110    Ala.    628,    18    So.  3.     Ante,    §    571(c). 

299;     Walden     v.     Williams,     128  4.     Butler    v.    Stevens,    26    Me. 

Ark.    5,    193    S.   W.    71;    Smith   v.  484;     Rankin    v.    Coar,    46    N.    J. 

Yule,    31    Cal,    180,    89    Am.    Dec.  Eq.  566,  11  L.  R.  A.  661,  22  Atl. 

167;     Whalen    v.    Schneider,    281  177;   Pope  v.  Allen,  90  N.  Y.  298; 

111.  557,   118  N.   E.   41;    Thierman  Cameron  v.  Romele,  53  Tex.  238, 

V.    Bodley,    23    Ky.    L.    Rep.    756,  are    perhaps    to    that    effect. 

63  S.  W.  737;    Butler  v.   Stevens,  5.     See    Ramirez    v.    Smith,    94 

26  Me.  484  (semble);  Pope  v.  Tex.  184,  59  S.  W.  258;  Kerr  v. 
Allen,    90    N.    Y.    298;     Farmers' 


§  571]  Peiortties  and  Recording.  2233 

purchaser,  upon  inquiry  of  the  one  in  possession,  would 
usually  be  informed  by  him  that  his  interest  is  an  un- 
divided one,  and  that  there  is  a  similar  interest  out- 
standing in  another.  Such  possession  by  one  cotenant 
is  obviously  sufficient  to  put  a  purchaser  on  inquiry  as 
to  the  interest  of  such  cotenant  himself.*' 

That  the  property  is  occupied  by  a  married  couple 
has  been  held  to  put  a  purchaser  from  a  third  person 
on  inquiry  as  to  a  title  in  the  wife  adverse  to  such  per- 
son,''' as  it  would,  no  doubt,  as  to  such  a  title  in  the 
husband.  And  the  case  would  be  the  same  when  the 
husband  claims  imder  a  lease  from  the  vendor.^  That 
the  property  is  occupied  by  a  married  couple  would  not 
ordinarily  put  a  purchaser  from  the  husband  on  in- 
quiry as  to  an  adverse  interest  in  the  wife,  he  having 
the  right  to  assume  that  she  is  on  the  premises  merely 
by  reason  of  the  marital  relationship.^ 

Whether  the  joint  occupation  of  husband  and  wife 
would  be  sufficient  to  put  a  purchaser  from  the  wife  on 
inquiry  as  to  a  title  in  the  husband  appears  to  be  a 
matter  in  regard  to  which  no  positive  rule  can  be  as- 
serted.^" 

Kingsbury,  39   Mich.   150,   33  Am,  Ala.    142,    50    So.    365;     Neal    v. 

Rep.  362.  Perkerson,     61    Ga.    346;     Austin 

6.  Anthe  v.  Heide,  85  Ala.  v.  Southern  Home  Bldg.  &  Loan 
236,  4  So.  380;  Kirkham  v.  Ass'n,  122  Ga.  439,  50  So.  382; 
Moore,  30  Ind.  App.  549,  65  N.  Gray  v.  Lamb,  207  111.  258,  69  N. 
E.  1042;  Wilcox  v.  Leominster  E  794;  Westerfield  v.  Kimmer, 
Nat.  Bank,  43  Minn.  541,  19  Am.  82  Ind.  365;  Thomas  v.  Kennedy, 
St.  Rep.  259,  45  N.  W.  1136.  24    Iowa,    397,    95   Am.    Dec.    740; 

7.  Kirby  v.  Talmadge,  160  U.  Allen  v.  Caldwell,  55  Mich.  8,  20 
S.  379,  40  L.  Ed.  463;  Butler  v.  N.  W.  692.  But  see  Brown  v. 
Thweatt,  119  Ala.  325,  24  So.  Carey,  149  Pa.  134,  23  Atl.  1103. 
545;  Iowa  Loan  &  Trust  Co.  v.  10.  That  it  is  sufficient,  seo 
King,  58  Iowa,  598,  12  N.  W.  Broome  v.  Davis,  87  Ga.  584,  13 
595;  Phelan  v.  Brady,  119  N.  Y.  S.  E.  749.  That  it  is  not  suffi- 
587,  28  L.  R.  A.  211,  23  N.  E.  cient,  see  Kirby  v.  Tallmadgo, 
1109;  Walker  v.  Neil,  117  Ga.  KO  U.  S.  370,  40  L.  Ed.  463  {die- 
733,    45    S.    E.    387.  ium);       Atwood     v.     Bearss,     47 

8.  Garrard  v.  Hull,  92  Ga.  787,  Mich.  72,  10  N.  W.  112  (semblc) ; 
20    S.   E.   357.  Fussett   v.    Smith,    23    N.    Y.    252 

9.  Langley     v.      Pulliam,      162  (semhle). 


2234  Real  Property.  [§  571 
(f )    Possession  by  tenant  under  lease.    By  the 


decided  weigiit  of  autliority  in  tbis  country,  a  pur- 
chaser may,  by  the  possession  of  a  third  person,  be 
charged  with  notice  of  the  rights  of  one  under  whom 
such  person  holds  as  tenant.^ ^  Tliis  effect  given  to  a 
tenant's  possession  is  based  on  the  theory  that,  upon 
inquiring  of  the  tenant  as  to  his  rights,  the  purchaser 
would  be  informed  as  to  the  identity  of  the  landlord, 
and  would  be  put  on  inquiry  as  to  the  latter 's  rights. 
In  England,  however,  as  in  one  or  two  cases  in  this 
country,  the  view  has  been  adopted  that  a  purchaser 
who  neglects  to  inquire  into  the  title  of  the  occupant, 
while  taking  subject  to  such  occupant's  rights,  does  not 
take  subject  to  the  rights  of  one  under  whom  the  latter 
holds  as  tenant,  unless  the  purchaser  knows  that  the 
rent  is  paid  to  one  whose  title  is  inconsistent  with  that 
of  the  vendor.^^ 

The  ordinary  American  rule  that  the  purchaser  of 
land   in   the  possession   of   a   tenant  under  a   lease   is 

11.     Brunson  v.  Brooks,  68  Ala.  983;    McBee    v.    O'Connell,    19    N. 

248;     Button    v.    Warschauer,    21  M.    565,    145    Pac.    123;    Edwards 

Cal.     609,     82     Am.     Dec.      765;  v.  Thompson,  71  N.  C.  177;    Ran- 

O'Rourke    v.     O'Connor,     39     Cal.  dall    v.    Lingewall,    43    Ore.    383, 

442;     Tillotson    v.     Mitchell,     111  73    Pac.    1;    Hood   v.    Fahnestock, 

111.    523;    Gallagher    v.    Northriip,  1  Pa.   470;    Hottenstein   v.   Lerch, 

215  111.  536,  74  N.  E.  711;   Dickey  104  Pa.  454;   Glendennlng  v.  Bell, 

V.  Lyon,  19  Iowa,  544;    Townsend  70  Tex.  632,  8  S.  W.  324. 
V.    Blanchard,    117    Iowa,    36,    90  12.     Barnhart    v.    Greenshields, 

N.    W.    519;     Penrose    v.    Cooper.  9    Moore,    P.    C.    C.    34;    Hunt   v. 

86     Kan.     597,     121     Pac.     1103;  Luck    (1902),    1    Ch.    428;    Flagg 

Hanly     v.     Morse,     32     Me.     287;  v.    Mann,    Fed.    Cas.    No.    4,847,   2 

Brady  v.   Sloman,   156   Mich.   423,  Sumn.    486;     Beattie    v.    Beattie, 

120     N.     W.      795;      Wilkins     v.  21    Mo.    313,    64    Am.    Dec.    234. 

Bevier,     43    Minn.     213,    19     Am.  For    a    criticism    of    the    English 

St.     Rep.     238,     45     N.     W.     157;  view,    see    editorial    note    12    Co- 

Ludowese   v.    Amidon,    124    Minn.  lumbia  Law   Rev.    549. 
288,    144    N.    W.    965;    Bratton   v.  It    has   been    decided    that    poa- 

Rogers,    62   Miss.    281;    Conlee   v.  session    by    a    tenant    does    not 

McDowell,    15    Neb.     184,     18     N.  charge    a    purchaser    with    notice 

W.    60;    Wood  v.   Price,   79   N.    J.  that  the  rent  has  been  assigned. 

Eq.  620,  38  L.  R.  A.    (N.  S.)    772,  Steel   v.    De   May,   102   Mich.   274, 

Ann.    Cas.    1913A,    1210,    81    Atl.  60    N.    W.    684, 


§  571]  Priorities  and  Recording.  2235 

charged  with  notice  of  the  rights  of  the  landlord,  has,  in 
a  number  of  cases,  been  regarded  as  inapplicable  when 
the  same  tenant  had  previously  held  possession  as  ten- 
ant under  the  vendor,  the  theory  being  that  there  hav- 
ing been  no  actual  change  of  possession  in  such  case, 
a  subsequent  purchaser  from  the  vendor  has  no  reason 
to  suspect  a  divestiture  of  the  latter 's  title. ^'^  One 
difficulty  with  this  view  is  that  it  appears  to  assume 
that  the  purchaser  invariably  has  notice  of  the  prior 
state  of  the  title.  If  he  is  not  aware  that  the  tenant 
formerly  held  under  the  vendor,  he  is  certainly  not 
justified  in  assuming  that  the  tenant  holds  under  the 
vendor  at  the  time  of  the  sale.^^  It  might  furthermore 
be  questioned  whether  a  purchaser  has  a  right  to  as- 
sume, because  he  knows  that  the  person  in  possession 
was  formerly  holding  under  a  particular  person,  that  he 
is  still  holding  under  the  same  person. ^^  There  are 
occasional  decisions  apparently  opposed  to  those  above 
cited.i*^ 

Whether,  adopting  the  ordinary  American  rule,  the 
purchaser  would  be  relieved  from  further  inquiry  in 
case  the  tenant  informs  him  that  he  holds  under  a  lease, 
but  refuses  to  inform  him  as  to  the  identity  of  the 
landlord,  appears  not  to  have  been  decided.  He  would, 
presumably,  in  such  case,  have  no  right  to  assume  that 

13.     Fitzgerald    v.    Williamson,  14.     See    Phelan    v.    Brady,    119 

85    Ala.    585,    5    So.    309;    King   v.  N.    Y.    587,    8    L.    R.    A.    211,    23 

Paulk,    85    Ala.    186,    4    So.    825;  N.  E.  1109. 

Griffin    v.    Hall,    111    Ala.    601,    20  15.     See    Mainwaring    v.    Tem- 

So.    48;     Wahrenberger    v.    Waid,  pieman,   51  Tex.  212. 

8    Colo.    App.    200,    45    Pac.    518;  16.     Haworth     v.     Taylor,     108 

Stockton     V.     National     Bank     of  111.    275;    Mallett   v.   Kaehler,   141 

Jacksonville,    45    Fla.    590,   34    So.  III.   70,  30   N.  E.   549;    Hannan   v. 

897;     Veasie    v.    Parker,    2:5    Me.  Seidentopf,    113    Iowa,   659,   86   N. 

170.     Loughridge   v.    Bowland,    52  W.    44;     Penrose    v.     Cooper.     86 

Miss.    546;     Conlce    v.    McDowell,  Kan.   597,    121   Pac.   1103;    Duff  v. 

15   Neb.    189,    18    N.    W.    60.      See  McDonough.    155    Pa.    10,    25    Atl. 

McCormick     v.     McCorroick     Har-  608;    Mainwaring    v.    Tenipleman, 

vesting  Mach.  Co.,  122   Iowa,  393,  51    Tex.    212;    Duncan   v.    Matula, 

95  N.   W.   181.  (Tex.  Civ.  App.)  26  S.  W.  638. 


2236  Eeal  Peopekty.  [§  571 

the  person  in  possession  holds  as  tenant  under  the 
vendor.^''' 

There  are  occasional  decisions  that,  if  the  person  in 
possession  held  originally  as  tenant  under  the  vendor, 
the  fact  that  the  vendor  transferred  his  reversionary- 
interest  to  another  does  not  of  itself,  without  any  at- 
tornment by  the  tenant  to  the  transferee,  make  the  latter 
the  landlord,  so  as  to  charge  a  subsequent  purchaser  with 
notice  of  the  latter 's  rights  by  reason  of  the  tenant's 
possession.^*  This  requirement  of  attornment,  which  is, 
in  connection  with  the  transfer  of  a  reversion,  for  most 
purposes  obsolete, ^'^  is  presumably  to  be  regarded  as 
based  on  the  theory  that  until  the  tenant  has  in  some 
way  recognized  his  new  landlord,  an  inquiry  of  him 
would  usually  not  result  in  the  discovery  of  the  transfer 
of  the  reversion. 

It  has  been  decided  in  a  number  of  states  that,  by 
the  possession  of  a  tenant  under  a  lease,  a  purchaser 
is  chargeable  with  notice,  not  only  of  the  tenant's  rights 
under  the  lease,  but  also  of  any  right  which  he  may 
have  not  under  the  lease,  as,  for  instance,  under  an 
agreement  by  the  lessor  to  sell  the  property  to  him.^o 

17.  There  is  a  decision  that,  Rep.  288,  45  N.  W.  157;  Ferguson 
although  a  purchaser,  upon  in-  v.  McCrary,  20  Tex.  Civ.  App. 
quiring   of   the   tenant    in   posses-      529,  50  S.  W.  472. 

sion,    is   told   by   him   that   he    is  19.     Ante.    §    53(a). 

holding  as  tenant  of  the  vendor,  20.     Brewer  v.  Brewer,  19  Ala. 

he    is    nevertheless    charged    with  481;    McRae   v.    McMinn,    17    Fla. 

notice    of    the    rights    of   another,  876;    Coari   v.   Olson,   91   111.   273; 

under    whom    the    tenant    is    ac-  Crooks  v.  .Jenkins,  124  Iowa,  317, 

tually  holding  as  tenant.     Clarke  104  Am.  St.  Rep.   326,  100  N.  W. 

V.     Beck,      72      Ga.      127.       This  82;     Russell    v.    Moore,    3    Mete, 

decision    is    based    on    the    (mis-  (Ky.)   476;   Hull  v.  Noble,  40  Me. 

taken)    theory  that  a  tenant   can  481;    Dengler  v.   Fowler,   94   Neb. 

never    deny    his    landlord's    title.  621,    143    N.    W.    944;    Havens   v. 

See  1  Tiffany,  Landlord  &  Tenant  Bliss,    26    N.    J.    Eq.    363;    Wood 

pp.     448-450.       The    hardship     on  v.   Price,  79  N.  J.  Eq.   620,  28  L. 

the   purchaser   seems   obvious.  R.    A.     (N.    S.)     772,    Ann.    Cas. 

18.  McCormick  v.  McCormick  1913A  1210,  81  Atl.  983;  Chester- 
Harvesting  Mach.  Co.,  122  Iowa,  man  v.  Gardner,  5  Johns.  Ch.  (N. 
393,  95  N.  W.  181;  Wilkins  v.  Y.)  29;  Kerr  v.  Day,  14  Pa.  112, 
Bevier,  43  Minn.  213,  19  Am.   St.  53    Am.    Dec.    526;     Anderson    v. 


§  571]  Priorities  axd  Eecording.  2237 

These  decisions  are  based  on  English  decisions,  to  the 
same  effect,- ^  and  involve  merely  an  application  of  the 
general  rule,  as  recognized  in  England,  that  a  pur- 
chaser is  under  a  primary  duty  to  inquire  of  the  per- 
son or  persons  in  possession  as  to  the  character  and 
extent  of  his  rights.  They  do  not  consider  the  effect  of 
the  possible  record  of  the  lease,  but  presumablv,  if  tho 
lease  were  recorded,  since  the  tenant  would  then  have 
a  record  title  to  explain  the  possession,  the  purchaser 
would,  in  some  states,-  be  relieved  froin  any  duty  of 
inquiry  as  to  the  rights  of  the  tenant  apart  froin  the 
lease.2^ 

It  has  been  intimated  that  if  the  tenant  under  a 
•  lease  acquired  the  fee  simple  title  immediately  before 
the  purchase  of  the  land  by  another,  the  purchaser, 
knowing  that  such  tenant  has  been  in  possession  as 
tenant  under  a  lease,  may  presume  that  his  possession 
is  still  under  the  lease,  and  is  under  no  obligation  to 
make  inquiry  as  to  his  rights.^-^  But  such  a  view  cannot 
well  be  harmonized  with  the  decisions,  above  referred 
to,25  that  by  the  possession  of  a  tenant  under  a  lease  a 

Brinsner,  129  Pa.  376,  6  L.  R.  A.  94  Neb.  621,  143  N    W    944      The 

205,  11  Atl.  809,   IS  Atl.   520.     In  first  cited  case  refers  to  Leach  v 

Texas  a  contrary  rule  appears  to  Ansbacher  55  Pa.  85    to  the  effect 

prevail.   Smith  v.  Miller.  63  Tex.  that,    if    a    purchaser    knows    of 

72;     Brown    v.    Roland,    11    Tex.  a    lease,    he    can     attribute     the 

Civ.    App.     648,    33    S.    W.    373;  lessee's    possession    to    the    lease 

Hamilton  v.  Ingram,  13  Tex.  Civ.  and    is    not    charged    with    notice 

App.   604,   35  "S.   W.   748.   But   see  of  any  outstanding  equities     But 

Jackson  V.  Walls,-Tex.  Civ.  App.  this   latter    case    is   overruled    by 

— ,   187   S.  W.   676.  Anderson    v.    Brinsmer,    129    Pa 

21.  Allen  v.  Anthony,  1  Meriv.  376,     6     L.     R.    A.    205,     11    Atl. 
282;    Barnhart  v.   Greenshields,   9  809    18  Atl    520 

Moore  P^  C.   18;    Daniels  v.  Davi-  24.     Rogers    v.    Jones.    8    N.    H. 

son,   16  Ves.   249  264;      McMechan     v.     Griffing      :< 

22.  Ante,  §  571(c)..  pick.   (Mass.)   149;   Hewos  v.  Wis- 

23.  It  was  so  decided  In  Red  well,  8  Me.  94;  Kelley  v.  Blakeney 
River  Valley  Land  &  Investment  —Tex.  Civ.  App  _  172  s  W  77o' 
Co.  V.  Smith,  7  N.  D.  236,  74  N.  Contra,  Crooks  v.  .lenkins,'  124 
W.  194;  Hamilton  v.  Ingram,  U  Iowa,  317,  104  Am.  St  Rop  82 
Tex.     Civ.     App.     604.     35     S.     W.  100    N.    W.    82. 

748.     Contra,    Dengler   v.    Fowler.  25.     Ante,  this  section,  note  20 

2  R.  P.— 66 


2238  Real  Property.  [§  571 

purchaser  is  charged  with  notice  of  rights  of  the  latter 
not  based  on  the  lease.-''  If  the  purchaser  is,  by  the 
possession  of  one  who  entered  under  a  lease,  charged 
with  notice  of  his  rights,  for  instance,  under  a  contract 
for  the  purchase  of  the  fee  simple  title,  he  should  be 
charged  with  notice  of  his  rights  under  an  actual  con- 
veyance. 

There  is  a  decision  to  the  apparent  effect  that  a 
purchaser  cannot,  by  the  possession  of  a  tenant  under  a 
lease,  be  charged  with  notice  of  such  tenant's  rights,  if 
the  latter  was,  before  the  making  of  the  lease,  in  posses- 
sion as  a  trespasser.-^  It  is  not  clear  why  the  pur- 
chaser should,  in  such  case,  be  relieved  from  the  duty 
of  inquiry. 

(g)    Continued  possession  by  grantor.     Some 


courts  have  adopted  the  view  that  the  continuance  in  pos- 
session by  a  grantor,  after  conveying  the  land,  is,  like 
the  possession  of  any  other  person,  sufficient  to  put  a 
subsequent  purchaser  on  inquiry,  and  so  affect  him  with 
notice  of  any  rights  in  the  grantor.^^  Other  courts  take 
the  view  that,  by  executing  a  conveyance  of  property,  the 

26.  See  Flagg  v.  Mann,  2  navian  American  Bank  of  Grand 
Sumn.  486,  556;  Matthews  v.  Forks,  114  Minn.  435,  131  N.  W. 
Demerrltt,  22  Me.   312.  486;     Ludowese    v.    Amidon,    124 

27.  Emmons  v.  Murray,  16  N.  Minn.  288,  144  N.  W.  965;  Smith 
H.  385.  V.   Myers.   56  Neb.   503,   76  N.  W. 

28.  Gerwin  v.  Shields,  187  108;  Seymour  v.  McKinstry,  106 
Ala.  153,  65  So.  769;  Pell  v.  Mc-  N.  Y.  230,  12  N.  E.  348,  14  N.  E. 
Elroy,  36  Cal.  268;  Illinois  Cent.  94  (semble);  Grimstone  v.  Carter, 
R.  C.  V.  McCullough,  59  111.  166;  3  Paige  (N.  Y.)  421,  24  Am.  Dec. 
Springfield  Homestead  Ass'n  v.  230;  (But  see  Cook  v.  Travis,  20 
Roll,  137  111.  205,  31  Am.  St.  N.  Y.  400);  O'Toole  v.  Omlie,  8 
Rep.  358,  27  N.  E.  184  (semhle).  N.  D.  444,  79  N.  W.  849;  Manl- 
Ronan  v.  Bluhm,  173  111.  277,  50  gault  v.  Lofton,  78  S.  C.  499,  59 
N.  E.  694;  Hopkins  v.  Garrard,  N.  E.  534;  Pippin  v.  Richards, 
7  B.  Mon.  (Ky.)  312;  Kentland  146  Wis.  69,  130  N.  W  872;  In 
Coal  &  Coke  Co.  v.  Elswick,  167  Hedlin  v.  Lee,  21  N.  D.  495,  131 
Ky.  593,  181  S.  W.  181,  (if  con-  N.  W.  390,  it  was  held  that  a 
veyance  procured  by  fraud);  Mc-  purchaser  from  one  who  claimed 
Laughlin  v.  Shepherd,  32  Me.  143,  under  an  invalid  foreclosure  sale 
52  Am.  Dec.  646;    Teal  v.  Scandi-  was,  by  the  continued  possession 


§  571] 


Pkiokities  and  Eecording. 


2239 


grantor  in  effect  declares  that  he  thereby  disposes  of  all 
his  rights  therein,  and  that  a  subsequent  purchaser 
from  the  grantee  may  accordingly  assume  that,  if  the 
grantor  retains  possession,  it  is  not  by  force  of  any 
interest  retained  by  him,  but  merely  by  the  sufferance 
of  the  grantee,  and  that  the  purchaser  is  consequently 
relieved  from  any  duty  of  making  inquiry  as  to  hia 
rights,-''  unless,  according  to  some  cases,  his  possession 
continues  a  considerable  period  after  the  delivery  of 
the  conveyance.'''^  One  difficult}'  with  this  latter  view 
is  that  it  imputes  to  a  conveyance  an  effect  as  a  declara- 
tion by  the  grantor,  for  the  purpose  of  raising  an  es- 
toppel against  him,  which  is  not  necessarily  in  accord 
with  the  understanding  of  the  parties  or  with  the  legal 
effect  of  the  conveyance.     One  executing,  for  instance,  a 


of  the  former  owner,  charged 
with  notice  if  the  invalidity  of 
the  sale. 

29.  Morgan  v.  McCuin,  96 
Ark.  512,  132  S.  W.  459: 
Malette  v.  Wright,  120  Ga.  735, 
48  S.  E.  229;  Koon  v.  Tramel,  71 
Iowa,  132,  32  N.  W.  243;  Trulin 
V.  Plested,  178  Iowa,  220,  159  N. 
W.  633;  McNeil  v.  Jordan,  28 
Kan.  7;  Bloomer  v.  Henderson,  8 
Mich.  395,  77  Am.  Dec.  453;  Mc- 
Ewen  V.  Keary,  178  Mich.  6,  L.  R. 
A.  1916B  1063,  144  N.  W.  524; 
Baldwin  v.  Anderson,  103  Miss. 
462,  60  So.  578;  Vankeuren  v. 
Central  R.  Co.  of  New  Jersey,  38 
N.  J.  L.  165;  Rankin  v.  Coar,  46 
N.  J.  Eq.  566,  11  L.  R.  A.  661,  22 
Atl.  177;  Cook  v.  Travis,  20  N.  Y. 
400;  Red  River  Valley  Land  In- 
vestment Co.  V.  Smith,  7  N.  D. 
236,  74  N.  W.  194;  Rowsey  v. 
Jamison,  46  Okla.  780,  149  Pac. 
880;  La  Forest  v.  Downer,  63  Ore. 
176,  126  Pac.  995;  Scott  v.  Galla- 
gher,   14    Serg.    &   R.    (Pa.)    333; 


Eylar  v.  Eylar,  60  Tex.  315: 
Love  V.  Breedlove,  75  Tex.  649, 
13  S.  W.  22;  Murry  v.  Carlton. 
65  Wash.  364,  44  L.  R.  A  (N.  S.) 
314,  118  Pac.  332.  But  the  pur- 
chaser can  obviously  not  be  pro- 
tected if  a  lack  of  good  faitli  on 
his  part  appears  otherwise.  Smith 
V.  Phillips,  9  Okla.  297,  60  Pac. 
117. 

On  apparently  the  same  theory 
it  has  leen  held  that  the  con- 
tinuance in  possession  of  one 
whose  title  has  been  divested  by 
judicial  decree  does  not  affect 
with  notice  one  purchasing  from 
the  person  in  whom  title  is 
vested  by  the  decree.  Dawson  v. 
Danbury  Bank,  15  Mich.  489: 
Harms  v.  Coryell,  177  111.  496, 
53   N.   E.   87. 

30.  Turman  v.  Bell,  4  Ark. 
273,  26  Am.  St.  Rep.  35,  15  S.  W. 
886;  American  Bldg.  &  Loan  Ass'n 
v.  Warren,  101  Ark.  163,  141  S. 
W.  765;  Bennett  v.  Robins.)Ti,  27 
Mich.    26;     Stevens    v.    Hulin,    53 


2240  Real  Pkopeety.  [^  572 

conveyance  of  a  fee  simple  title,  may  perfectly  well  ac- 
quire, by  the  same  or  a  subsequent  transaction,  an  equity 
against  the  grantee  or  a  lease  for  a  limited  period,  and 
it  is  difficult  to  see  why  his  conveyance  should  be  re- 
garded as  a  declaration  that  he  has  not  acquired,  or  will 
not  acquire,  such  an  interest,  or  why  a  subsequent  pur- 
chaser should  be  justified  in  assuming,  for  the  purpose 
of  being  relieved  from  any  duty  of  inquiry,  that  the 
grantor's  continuance  in  possession  is  wrongful  rather 
than  rightful. 

It  has  been  decided  that  if  A  and  B  being  in  pos- 
session of  land,  A  conveys  the  land  to  B,  and  they  sub- 
sequently both  remain  in  possession,  the  possession  of  B 
does  not  charge  a  purchaser  from  A  with  notice  of  B's 
title." ^  If,  however,  in  such  case,  B  assumes  control  of 
the  property,  A  remaining  thereon  only  in  a  subordinate 
capacity,  B  's  possession  might,  it  would  seem,  affect  the 
purchaser  from  A  with  notice  of  B's  title. 

§  572.  Notice  from  statements  in  instruments  of 
title.  In  so  far  as  a  purchaser  has  actual  or  construc- 
tive notice  of  a  conveyance  or  other  instrument  executed 
by  one  previously  owming  or  claiming  to  own  the  land, 
he  is  charged  with  notice  of  all  matters  stated  or  refer- 
red to  in  such  conveyance,  which  may  possibly  affect 
the  title,  and  he  is  bound  to  make  any  inquiries  or  re- 
searches suggested  by  such  statements  or  references.^^ 

Mich.   93,   18   N.   W.   569;    Contra,  133   Mass.   513;    Sioux   City  &   St. 

Jones    V.    Grimes,    115    Miss.    874  P.  R.  Co.  v.  Singer,  49  Minn.  301. 

76   So.   735.  32  Am.   St.   Rep.   554;    Stewart  v. 

31.  McCarthy  v.  Nicrosi,  72  Matheny,  66  Miss.  21,  14  Am.  St. 
Ala.  332,  47  Am.  Rep.  418;  Watt  Rep.  538,  5  So.  387;  Gross  T. 
V.  Parsons,  73  Ala.  202;  Foulks  v.  Watts,  206  Mo.  373,  121  Am.  St. 
Reed,  89  Ind.  373;  Atwood  v.  Rep.  662,  104  S.  W.  30;  Buchanan 
Bearss,  47  Mich.  72,  10  N.  W.  v.  Balkum,  60  N.  H.  406;  Roll  v. 
112;  Rankin  v.  Coar,  46  N.  J.  Eq.  Rea,  50  N.  J.  L.  264,  12  Atl.  905; 
566,  11  L.   R.  A.   661,  22  Atl.  117.  McPherson    v.    Rollins,   107    N.   Y. 

32.  Gaines  v.  Summers,  50  316,  1  Am.  St.  Rep.  826,  14  N.  E. 
Ark.  322;  Hitchcock  v.  Hines,  411;  Muller  v.  McCann,  50  Okla. 
143  Ga.  377,  85  S.  E.  119;  Craw-  710,  151  Pac.  621;  Jennings  v. 
ford  V.  Chicago  B.  &  Q.  R.  Co.,  Bloomfleld,  199  Pa.  638,  49  Atl. 
112    111.    314;    Smith    v.    Burgess, 


§  572] 


Pkioeities  and  Eecording. 


2241 


For  this  purpose  a  purchaser  is  charged  with  notice  of 
any  conveyance  which  occurs  in  the  chain  of  title  under 
which  he  claims,  that  is,  he  is  charged  with  notice  of  all 
matters  stated  or  referred  to  in  any  conveyance  which  is 
essential  to  support  his  claim,  without  reference  to 
whether  he  has  actual  notice  of  such  conveyance/''^  And 
the  fact  that  such  conveyance  in  the  chain  of  title  is  not 
of  record  is  immaterial  in  this  regard.^^  And  he  is 
charged  with  notice  of  the  contents,  not  only  of  instru- 
ments in  his  chain  of  title,  but  also  of  other  instruments 
referred  to  in  such  instruments,  although  not  of  record,'^ 


135;  Teague  v.  Sowder,  121  Tenn. 
132,  114  S.  W.  484.  So  a  pur- 
chaser is  chargeable  with  notice 
of  a  restrictive  covenant  con- 
tained in  a  conveyance  in  his 
chain  of  title;  Wiegman  v.  Kusel, 
270  111.  520,  110  N.  E.  884;  Stees 
V  Kranz,  32  Minn.  313,  20  N.  W. 
241;  Schadt  v.  Brill,  173  Mich. 
647.  45  L.  R.  A.  (N.  S.)  726,  139 
N.  W.  878;  Winfield  v.  Henning, 
21  N.  J.  Eq.  188;  Bowen  v.  Smith, 
76   N.   J.   Eq.   456,   74   Atl.   675. 

One  purchasing  land  with  notice 
of  a  mortgage  or  deed  of  trust 
thereon  to  secure  a  loan,  contain- 
ing a  power  of  sale,  has  been 
regarded  as  charged  with  notice 
of  a  sale  under  the  power. 
Farrar  v.  Payne,  73  III.  82; 
Heaton  v.  Prather,  84  111.  330; 
Hill  V.  Ballard— (Mo.)— ,  178  S. 
W.  445;  Mansfield  v.  Elcelsior 
Refining  Co.,  135  U.  S.  326,  34  L. 
Ed.  162. 

33.  Wormley  v.  Wormley,  8 
Wheat.  (U.  S.)  421,  447,  5  L.  Ed. 
651;  Larkin  v.  Haralson,  189  Ala. 
147,  66  So.  459;  Costello  v. 
Graham,  9  Ariz.  257,  80  Pac.  336; 
White  v.  Moffett,  108  Ark.  490, 
158  S.  W.  505;  Myers  v.  Berven, 
1G6  Cal.  484,  137  Par.  260;   Simma 


V.  Freiherr,  100  Ga.  607,  28  S.  E. 
288;  Stager  v.  Crabtree.  177  111. 
59,  52  N.  E.  378;  Hazlett  v.  Sin- 
clair, 76  Ind.  488;  Knowles  v. 
Williams,  58  Kan.  221,  48  Pac. 
856;  Hyde  Park  Supply  Co.  v. 
Peck-Williamson  Heating  &  Ven- 
tilating Co.,  176  Ky.  513,  195  S. 
W.  1115;  Green  v.  Early,  39  Md. 
223;  Baldwin  v.  Anderson,  103 
Miss.  462,  60  So.  578;  Gross  v. 
Watts,  206  Mo.  373,  121  Am.  St. 
Rep.  662,  104  S.  W.  30;  Lyon  v. 
Gombert,  63  Neb.  630,  88  N.  W. 
774;  Gosman  v.  Pfistner,  80  N. 
J.  Eq.  432,  83  Atl.  781;  Holmes 
V  Holmes,  86  N.  C.  205.  In  re 
Mulholland,  224  Pa.  536,  132  Am. 
St.  Rep.  791;  Baxter  v.  First  Nat. 
Bank,  85  Tenn.  33,  1  S.  W.  501; 
Whitlock  V.  Johnson,  87  Va. 
32.'5,  12  S.  E.  614. 

34.  Green  v.  Maddox,  97  Ark. 
397,  134  S.  W.  931;  Bailey  v. 
Southern  R.  Co.,  112  Ky.  424,  60 
S.  W.  C31;  Stees  v.  Kranz,  32 
Minn.  313,  20  N.  W.  241;  Gil- 
bough  V.  Runge,  99  Tex.  539,  122 
Am.  St.  Rep.  659,  91  *S.  W.  5G6; 
2  Pomeroy,  Eq.  Jur.  627. 

35.  Hamilton  v.  Nutt.  34  Conn. 
501;  Weigel  v.  Green,  218  HI.  227, 


2242 


Real  Propeety. 


[§  572 


in  so  far,  at  least,  as  it  is  reasonably  possible  for  him  to 
acquire  knowledge  thereof.  And  it  follows  that  notice  of 
a  prior  conveyance  thus  acquired  by  reference  thereto 
in  the  chain  of  title  is  sufficient  to  defeat  any  claim  of 
priority  based  on  the  failure  to  record  such  convey- 
ance.^^ Being  put  upon  inquiry  by  the  recital  or  state- 
ment in  a  conveyance  in  the  chain  of  title,  the  pur- 
chaser "is  bound  to  follow  up  this  inquiry,  step  by  step, 
from  one  discovery  to  another  and  from  one  instrument 
to  another,  until  the  whole  series  of  title  deeds  is  ex- 
hausted and  a  comiDlete  knowledge  of  all  the  matters 
referred  to  and  affecting  the  estate  is  obtained.  Being 
thus  put  upon  inquiry,  the  purchaser  is  presumed  to 
have  prosecuted  the  inquiry  until  its  final  result  and 
with  ultimate  success.  "^"^  Likewise,  if  a  purchaser  is 
charged  with  notice  of  an  instrument,  as  being  of  record, 
or  in  his  chain  of  title,  and  such  instrument  refers  to  a 
Judicial  proceeding,  he  is  chargeable  with  notice  of  the 


75  N.  E.  913;  Walls  v.  State,  140 
Ind.  16,  38  N.  E.  177;  Taylor  v. 
Mitchell,  58  Kan.  194,  48  Pac. 
859;  Bailey  v.  Southern  Ry.  Co., 
112  Ky.  424,  60  S.  W.  631,  61 
S.  W.  31;  White  v.  Foster,  102 
Mass.  375;  Daughaday  v.  Paine, 
6  Miun.  443;  Binder  v.  Weinberg, 
94  Miss.  817,  48  So.  1013:  Bu- 
chanan V.  Balkum,  60  N.  H.  406; 
Sweet  V.  Henry,  175  N.  Y.  268,  67 
N.  B.  574;  Creek  Land  &  Imp. 
Co.  V.  Davis,  28  Okla.  579.  115 
Pac.  468;  Hancock  v.  McAvoy, 
151  Pa.  460,  18  L.  R.  A.  781,  31 
Am.  St.  Rep.  774,  25  Atl.  47; 
Davis  V.  Tebbs.  81  Va.  600;  Duval 
V-  Crawford,  73  W.  Va.  122.  80 
S.  E.  833.  In  Re  Nisbet  &  Potts' 
Contract  (K05)  1  Ch.  391,  it  was 
held  that  one  acquiring  title  by 
adverse  possession  was  charged 
with  notice  of  recitals  in  a  con- 
veyance to  the  disseisee. 

36.     Rosser    v.    Cheney,    61    Qa. 


468;  Morris  v.  Hogle,  37  lU.  150, 
87  Am.  Dec.  243;  Bronson  v. 
Wanzer,  86  Mo.  408;  Buchanan  v 
Balkum,  60  N.  H.  406;  McPher- 
son  V.  Rollins,  107  N.  Y.  316, 
1  Am.  St.  Rep.  826;  Parke  v 
Neeley,  90  Pa.  St.  52;  Davis  v. 
Tebbs,  81  Va.  600;  Town  v. 
Gensch,  101  Wis.  445,  76  N.  W. 
1096.    77   N.   W.    893. 

37.  Loomis  v.  Cobb, — Tex.  Civ. 
App.— ,  159  S.  W.  305,  per  Ilig- 
gins,  J.  See  Croasdale  v.  Hill, 
78  Kan.  140,  96  Pac.  37;  Berg- 
strom  v.  Johnson,  111  Minn.  247, 
126  N.  W.  899;  Adams  v.  Gossom, 
228  Mo.  566,  129  S.  W.  16; 
Snyder  v.  Collier,  85  Neb.  552, 
133  Am.  St.  Rep.  682,  123  N.  W. 
1023;  Roll  V.  Rea.  50  N.  J.  L. 
264,  12  Atl.  905;  Sweet  v.  Henry, 
175  N.  Y.  268,  67  N.  E.  574; 
Teague  v.  Sowder,  121  Tenn.  132. 
114  S.  W.  484;  Montgomery  v. 
Noyes,  73  Tex.  203,  11  S.  W.  138. 


§  572] 


Priorities  and  Eecording. 


2243 


character  and  validity  of  such  proceeding,  so  far  as  the 
title  is  dependent  thereon.-'^ 

A  purchaser  has  occasionally  been  held  to  be 
charged  with  notice  of  the  inadequacy  of  the  considera- 
tion recited  in  a  conveyance  under  which  his  grantor 
claims,  so  as  to  be  put  on  inquiry  as  to  whether  the  title 
is  not  defective.^^  But  such  a  view  has  been  regarded 
as  inapplicable  when  the  conveyance  had  been  executed 
a  number  of  years  before."*'' 

A  reference  in  one  instrument  to  another  instrument 
can  not  affect  a  purchaser  with  notice  of  the  latter  in- 
strument unless  the  reference  is  such  as  to  put  a  reason- 
ably careful  man  on  inquiry  with  regard  thereto."*^  And 
consequently  it  must  be  in' such  language  as  to  suggest 
a  probability,  or  at  least  a  possibility,  that  the  instru- 
ment referred  to  in  some  way  affects  the  title. ^-  Fur- 
thermore, it  has  been  said,  it  must  be  sufficiently  specific 
to  enable  a  purchaser  to  ascertain  by  inquiry  and  in- 


38.  Chicago  R.  I.  &  P.  R.  Co. 
V.  Kennedy,  70  lU.  350;  Singer 
V.  Scheible,  109  Ind.  575,  10  N. 
ei6;  Spears  v.  Waddington,  146 
Ky.  434,  142  S.  W.  679;  Wood  v. 
Krebbs.  30  Gratt.  (Va.)  708; 
Whitney  v.  Whitney  Elevator  & 
Warehouse  Co.,  183  Fed.  678,  106 
C.  C.  A.  28. 

39.  Winters  v.  Powell,  180 
Ala.  425,  61  So.  96;  Gaines  v. 
Summers,  50  Ark.  322,  7  S.  W. 
301;  Hume  v.  Franzen,  73  Iowa, 
?5,  34  N.  W.  490  (semble) ;  Bald- 
win V.  Anderson,  103  Miss.  462, 
60   So.   578. 

40.  Babcock  v.  Collins,  60 
Minn.  73,  51  Am.  St.  Rep.  503,  61 
N.  W.  1020;  Ross  v.  Kenwood 
Inv.  Co.,— Wash.— ,  131  Pac.  649; 
Kinney  v.  McCall,  57  Wash.  ii45, 
107  Pac.  385.  In  the  last  cited 
case  it  is  well  said  that  "a  pur- 
chaser   of    real    property    is    not 


bound  to  compare  the  considera- 
tion recited  in  every  deed  in  his 
chain  of  title  with  the  market 
value  of  the  property  at  the 
time  of  the  several  conveyances, 
under  penalty  of  having  the  prop- 
erty impressed  with  a  secret 
trust   in  his   hands." 

41.  Wood  V.  Pitman  Coal  Co., 
90  Ky.  588,  14  S.  W.  588;  Jen- 
nings V.  Dockham,  99  Mich.  253, 
58  N.  W.  66;  Crofut  v.  Wood,  3 
Hun  (N.  Y.)  571;  Stewarts  Ap- 
peal, 98  Pa.  377;  Durst  t. 
Daugherty,  81  Tex.  650,  17  S.  W. 
;!88;  Lewis  v.  Barnhart,  145  U. 
S.   56,  36  L.   Ed.   621. 

42.  Mueller  v.  Engeln,  12 
Bush  (Ky.)  441;  Mendelsohn  v. 
Armstrong,  52  La.  Ann.  1300,  27 
So.  7.'i5;  Kansas  City  Land  Co. 
v.  Hill,  87  Tenn.  589,  5  L.  R.  A. 
45,    11    S.    W.    797. 


2244  Ry-AL  Property.  [§  572 

vestigation  whether  the  instrument  or  proceeding  or 
other  matter  referred  to  does  affect  the  title.^''' 

A  purchaser  is  not  charged  with  notice  of  matter? 
referred  to  in  a  conveyance  of  the  land  which  is  not  a 
part  of  the  chain  of  title  under  which  he  claims,  which 
is  not  referred  to  in  any  instrument  constituting  a  part 
of  such  chain,  and  of  which  he  has  not  otherwise  any 
actual  or  constructive  notice.^^  and  a  fortiori  is  this  the 
case  as  regards  a  conveyance  of  other  land.^^  But 
a  purchaser  has  been  regarded  as  charged  with  notice 
of  a  provision  contained  in  a  conveyance  of  neighbor- 
ing land,  made  by  one  in  his  chain  of  title,  when  the 
purpose  and  effect  of  such  provision  was  to  create  an 
easement  or  other  servitude  upon  the  land  which  he  is 
purehasing.^^ 

A  purchaser  is  not,  it  seems,  put  on  inquiry  as  to 
defects  in  the  title  by  the  fact  that  a  conveyance  in  the 
chain  of  title  contains  no  covenant  for  title,^^  or  is  in 
the  form  of  a  quitclaim  deed.^^    And  the  same  view  has 

43.  Spellman  v.  McKeen,  96  Claiborne  v.  Holland,  88  Va.  1046, 
Miss.  693,  51  So.  914;  Acer  v.  14  S.  E.  915;  Providence  Forge 
Westcott,  46  N.  Y.  384,  7  Am.  Fishing  Hunting  Club  v.  Gill,  117 
Rep.  355.  See  Walls  v.  State,  140  Va.  557,  85  S.  E.  464.  But  in 
Ind.  16,  38  N.  E.  177.  Rogers  v.  White,— Tex.  Civ.  App. 

44.  Grundies  v.  Reid,  107  HI.  — ,  194  S.  W.  1001,  the  pur- 
304;  Hazlett  v.  Sinclair,  76  Ind.  chaser  of  land  was  regarded  as 
488,  40  Am.  Rep.  254;  Sullivan  v.  charged  with  notice  as  to  the 
Mefford,  143  Iowa,  210,  121  N.  W.  ownership  of  such  land  by  reason 
569;  Knox  County  v.  Brown,  103  of  a  statement  in  a  conveyance 
Mo.   223,   15  S.  W.  382;    Chandler  to  him  of  other  land. 

V.  Robinson     (N.  J.  Eq.),  75  Atl.  46.     A7ite,    §    567(d),    notes    60- 

180;     Hetherington    v.    Clark,    30  64. 

Pa.  St.  393;  Ramirez  v.  Sinith,  94  47.     Wilhelm  v.  Wilken,  149  N. 

Tex.    184,    59    S.    W.    258;    Ely   v.  Y.  447,  32  L.  R.  A.  370,  52  Am.  St. 

Wilcox,   20  Wis.   523.  Rep.   743,   44   N.   E.   82;    Schott  v. 

45.  Lewis  v.  Barnhart,  145  U.  Dosh,  49  Neb.  187,  59  Am.  St. 
S.  56,  36  L.  Ed.  621;  Bazemore  v.  Rep.  531,  68  N.  W.  346;  Bab- 
Davis,  55  Ga.  504;  Meacham  v.  cock  v.  Wells,  25  R.  I.  23,  105 
Blaess,  141  Mich.  258,  104  N.  W.  Am.  St.  Rep.  848,  54  Atl.  596; 
579;  Murray  v.  Ballou,  1  .Johns.  Padgitt  v.  Still,— Tex.  Civ.  App. 
Ch.    (N.   Y.)    566;    Kiley   v.    Hall,  — ,  192  S.  W.  1110. 

76     Ohio    374,     117     N.     E.     359;  48.     A^ite,  §  567(1),  note  28. 


§  573]  Priorities  and  Recording.  2245 

been  expressed  as  to  the  presence  of  a  special  war- 
ranty in  ordinary  form.*^  The  warranty  might,  how- 
ever, be  so  limited  as  to  put  a  purchaser  on  notice.^^ 

§  573.  Actual  and  constructive  notice.  Notice  is 
usually  said  to  be  either  actual  or  constructive,  but  the 
cases  and  text  books  are  absolutely  lacking  in  har- 
mony as  to  the  line  of  demarcation  between  the  two 
classes  of  notice,  and  any  statements  here  made  in  re- 
gard thereto  are  ventured  merely  by  way  of  suggestion. 
Fortunately  it  is  immaterial  whether  notice  is,  in  a 
particular  case,  to  be  regarded  as  actual  or  constructive, 
unless  it  is  asserted  as  satisfying  a  statutory  require- 
ment of  actual  notice.^  1 

It  would  seem  that  one  might  properly  be  said  to 
have  actual  notice  when  he  has  information  in  regard 
to  a  fact,  or  information  as  to  circumstances  an  in- 
vestigation of  which  would  lead  him  to  information  of 
such  fact,  while  he  might  be  said  to  have  constructive 
notice  when  he  is  charged  with  notice  by  a  statute  or  a 
rule  of  law^,  irrespective  of  any  information  which  he 
may  have,  actual  notice  thus  involving  a  mental  operation 
on  the  part  of  the  person  sought  to  be  charged,  and  con- 
structive notice  being  independent  of  any  mental  opera- 
tion on  his  part.  In  the  nature  of  things,  information 
as  to  a  matter  necessarily  varies  as  regards  the  partic- 
ularity of  the  information,  and  there  seems,  in  principle, 
no  distinction  between  notice  of  a  fact  based  on 
po^-itive  information  that  that  very  fact  exists,  and 
notice  based  on  information  creating  a  suspicion  that 
the  fact  exists. 

Applying  such  a  criterion,  a  purchaser  may  have 
actual  notice  of  a  prior  claim  on  the  land,  not  only 
when  the  nature  of  the  claim  is  specifically  stated  to 
him,  but  also  when  he  is  told  that  a  certain  person  has 

49.  Marston    v.    Catterlin,    270  292;    Padgitt    v.    Still,— Tex.    Civ. 
Mo.  5,  192  S.  W.  413.  App.— ,  192  S.  W.  lilO. 

50.  Cypress     Lumber     Co.     v.  51.     Ante,   §§  568,  note  50,  571, 
Shadel.  52  La.  Ann.   2094,  28  So.  note    68. 


2246  Real  Pkoferty.  [§  573 

a  claim  of  a  character  not  mentioned,  he  thus  ha\dng 
information  sufficient  to  enable  him  to  inquire  as  to 
the  existence  of  such  claim,^^  and  he  may  be  regarded 
as  having  actual  notice  of  the  claim  though  he  has  not 
been  actually  informed  that  any  claim  exists,  as  for 
instance  when  he  pays  a  grossly  inadequate  price  for 
the  property,'^--''  or,  in  England,  when  the  vendor  refuses 
to  produce  the  title  papers.  Applying  the  same  crite- 
rion, a  purchaser  has  constructive  notice  of  all  instru- 
ments in  his  chain  of  title,  irrespective  of  whether  he 
has  any  information  in  regard  thereto,  and  also  of  all 
statements  or  references  in  an  instrument  affecting  the 
title,  of  the  existence  of  which  instrument  he  has  actual 
or  constructive  notice,  although  he  has  not  seen  such 
instrument. ^'^  Likewise,  the  notice  with  which  a  princi- 
pal may  be  charged  by  reason  of  notice  to  his  agent,^* 
may  properly  be  referred  to  as  constructive  notice,  it 
being  entirely  independent  of  any  mental  consciousness 
on  the  part  of  the  principal. 

Adopting  the  suggested  line  of  demarcation  between 
actual  and  constructive  notice,  a  purchaser  might,  under 
joarticular  circumstances,  be  regarded  as  having  both 
actual  and  constructive  notice.  In  the  case,  for  in- 
stance, of  possession  of  the  property  by  a  third  person, 
the  purchaser  is  charged  with  constructive  notice  of 
an  adverse  claim  under  which  such  person  is  holding,^^ 
irrespective  of  his  knowledge  of  such  possession,  as 
when  he  is  living  in  another  state.  But  also  he  may 
be  regarded,  provided  he  knows  of  such  possession,  and 
only  then,  as  having  actual  notice  of  the  claim  on  which 
such  possession  is  based.  And  so  the  presence  of  struc- 
tures upon  the  property  may  be  sufficient  to  charge  a 
purchaser  with  actual  notice  of  an  easement  upon  the 
property,  provided  he  has  actual  knowledge  of  such 
structures.  But  if  he  were  to  be  charged  with  notice  of 
the  easement  by  reason  of  the  existence  of  the  struc- 

52.  Ante,   §   569,   note   52.  54.     Ante,    §    570. 

52a.    Ante,  §  569,  notes  55,  56.  55.    Ante,   §  571(a),  note  68. 

53.  Ante,   §   572. 


§  574]  Priorities  and  Recording.  2247 

tures,  independently  of  his  having  knowledge  of  them, 
the  notice  would  be  constructive  and  not  actual. ^^ 

§  574.  Purchasers  for  value. —  (a)  Valuable  con- 
sideration. In  order  to  claim  priority  as  against  one 
whose  rights  have  first  accrued,  one  must  be  a  pur- 
chaser, for  value,  and  one  who  receives  a  conveyance 
based  on  a  merely  ''good,"  as  distinguished  from  a 
"valuable,"  consideration,  takes  subject  to  all  prior 
conveyances  or  incumbrances.  It  is  a  principle  of 
equity,  independently  of  statute,  that  such  a  purchaser 
takes  subject  to  prior  equities,  but  the  recording  acts 
usually  in  terms  require  a  conveyance  to  be  recorded 
only  as  against  purchasers  for  valuable  consideration, 
and,  even  in  the  absence  of  such  an  express  declaration, 
the  statutes  have  ordinarily  been  so  construed.^^ 

One  is  not  a  purchaser  for  a  valuable  consideration, 
unless  he  has  parted  with  money  or  money's  worth  in 
consideration  of  the  conveyance,^^  that  is  he  must,  as  a 
consideration  for  the  conveyance,  have  done  some  act 
by  reason  of  which,  if  the  conveyance  were  set  aside, 
he  would  be  in  a  worse  pecuniary  position  than  before.^^ 
For  this  reason,  an  agreement  by  the  grantee  to  sup- 
port the  grantor  is  not  a  valuable  consideration,  if  it  is 
in  effect  merely  a  condition  on  which  he  can  retain  the 
title,  or  merely  a  promise  to  pay,  which  would  become 
ineffective  in  case  of  lack  of  title  on  the  part  of  the 
vendor.*^'^  But  the  assumption  by  the  purchaser,  as  a 
part  of  the  price,  of  a  debt  due  by  his  vendor  to  a  third 

56.  Ante,  §  569,  note  54.  809,   31   N.    E.    994. 

57.  See  2  Pomeroy,  Eq.  Jur.  59.  Boon  v.  Baines,  23  Miss. 
§§   656,  746-751;    1  Stimson's  Am.      136. 

St.  Law,  §  1611;  Webb,  Record  of  60.     Doe  v.  Doe,  37  N.  H.  268. 

Title,   §    204.  For    a    like    reason,    it    does    not 

58.  Frey  v.  Clifford,  44  Gal.  seem  that  there  is  a  valuable 
335;  Doss  v.  Armstrong,  6  How.  consideration  accruing  to  the 
(Miss.)  258;  Strong  v.  Whybark,  grantor  merely  because  his  con- 
204  Mo.  341,  12  L.  R.  A.  (N.  S.)  veyance  contains  the  reservation 
240,  120  Am.  St.  Rep.  710,  102  S.  of  an  easement  in  his  favor.  But 
W.  968;  Ten  Eyck  v.  Witbeck,  Aden  v.  City  of  Vallejo,  1.19  Cal. 
135    N.    Y.    40,    31    Am.    St.    Rep.  165,    72    Pac.    905,    Is    contra. 


2248  Eeal  Pkoperty.  [§  57-4 

})erson,  whereby  lie  becomes  absolutely  obligated  to  th<^ 
latter,  constitutes  a  valuable  consideration.^^ 

(b)    Pre-existing  debt.     By  the  very  decided 


weight  of  authority,  one  who  takes  a  mortgage  or  deed 
of  trust  to  secure  a  pre-existing  debt,  without  at  the 
time  relinquishing  any  right  or  claim  as  a  consideration 
for  the  mortgage,  is  not  a  purchaser  for  value/'^  Oc- 
casional decisions,  however,  assert  that  the  mortgagee  is 
in  such  case  protected  as  against  a  prior  unrecorded  con- 
veyance. This  view  is  occasionally  based  upon  the 
fact  that  the  recording  act  does  not  in  terms  mention  a 
valuable  consideration  as  essential  to  the  protection  of 
a  subsequent  purchaser,^^  and  occasionally  upon  the 
theory  that  such  a  mortgagee  is  a  purchaser  for  valu- 
able consideration.®^  So  far  as  this  latter  view  may  be 
sought  to  be  supported  by  reference  to  the  rule  adopted 
in  many  jurisdictions,  that  the  indorsee  of  a  negotiable 
instrument,  taking  it  as  security  for  a  pre-existing 
debt,  takes  it  free  of  equities  or  defenses  between  prior 

61.  Jackson  v.  Winslow,  9  Schumpart  v.  Dillard,  55  Miss. 
Cow.  (N.  Y.)  13;  Warren  v.  361;  Weaver  v.  Barden,  49  N.  Y. 
Wilder,  114  N.  Y.  209,  215,  21  N.  286;  Union  Nat.  Bank  of  Osh- 
E.  159;  Watkins  v.  Reynolds,  123  kosh  v.  Oium,  3  N.  D.  193,  44 
N.  Y.  211,  25  N.  E.  322;  Citi-  Am.  St.  Rep.  533,  54  N.  W.  1034; 
zen's  Bank  of  Parker  v.  Shaw,  McGrath  v.  Cowen,  57  Ohio  St. 
14  S.  Dak.  197,  84  N.  W.  779;  385,  49  N.  E.  338;  Adamson  /. 
Henderson  v.  Pilgrim,  22  Tex.  Souder,  L05  Pa.  498,  55  All.  182; 
464;  Essex  v.  Mitchell, — Tex.  Brown  v.  Vanlier,  7  Humph. 
Civ.  App.  — ,   183    S.   W.   399.  (Tenn.)    239;     Spurlock    v.    Sulli- 

62.  People's  Sav.  Bank  v.  van,  36  Tex.  511;  McDonald  i: 
Bates,  120  U.  S.  556,  30  L.  Ed.  Co.  v.  Johns,  62  Wash.  521,  33 
754;  Jones  v.  Robinson.  77  Ala.  L.  R.  A.  (N.  S.)  57,  114  Pac.  175; 
499;  Haldiman  v.  Taft,  102  Ark.  Funk  v.  Paul,  64  Wis.  35,  54  Am. 
45,  143  S.  W.  112;  Hubert  v.  Rep.  576,  24  N.  W.  419. 
Merchants'  Bank,  "!37  Ga.  70.  72  63.  Hayner  v.  Eberhardt,  37 
S.  E.  505;  Gilchrist  v.  Gough  63  Kan.  308,  15  Pac.  168;  Dorr  v 
Ind.  576,  30  Am.  Rep.  250;  Meyer,  51  Neb.  94,  70  N.  W.  543. 
Senneff  v.  Brackey,  165  Iowa,  525,  64.  Frey  v.  Clifford,  44  Cn). 
146  N.  W.  24;  Goodwin  v.  Mas-  335;  Cammack  v.  Soran,  30 
cachusetts  Loan  &  Trust  Co.,  152  Graft.  (Va.)  292;  Chapman  v. 
Mass.  189,  25  N.  E.  100;  Box-  Chapman,  91  Va.  397,  50  Am.  St 
heimer    v.    Gunn,    24    Mich.    372;  Rep.    846,    21    S.    E.    813;    Gilbert 


§  574] 


Pkiorities  and  Eecobding. 


2249 


parties,  it  seems  appropriate  to  quote  the  statement  of  a 
high  tribmial  that  "the  rules  established  in  the  interests 
of  commerce  to  facilitate  the  negotiation  of  mercantile 
paper,  which,  for  all  practical  purposes,  passes  by  de- 
livery as  money,  ought  not,  in  reason,  to  embrace  instru- 
ments conveying  or  transferring  real  or  personal  prop- 
erty as  security  for  the  payment  of  money.  "^' 

If,  as  a  consideration  for  the  giving  of  a  mortgage 
or  deed  of  trust  to  secure  a  pre-existing  debt,  the 
creditor  relinquishes  other  security  for  the  debt,  he  is  in 
a  position  to  claim  as  a  purchaser  for  value,"*^  as  he  is 
if  he  extends  the  time  for  the  payment  of  the  debt/'" 

One  who  takes  an  absolute  conveyance  of  land  in 
satisfaction  of  a  pre-existing  debt,  he  relinquishing  all 
claim  on  the  debt,  is  in  some  jurisdictions  regarded  as 
entitled  to  claim  as  a  purchaser  for  valuable  considera- 
tion,^^  while   in    other   jurisdictions    he    is    not    so    re- 


Bros.  &  Co.  V.  Lawrence  Bros.,  56 
W.  Va.   281,   49   S.   E.   155. 

65.  People's  Sav.  Bank  v. 
Bates,  120  U.  S.  556,  30  L.  Ed. 
754,  per  Harlan,  J.  And  see,  to 
the  same  effect.  Haldiman  v. 
Taft,  102  Ark.  45,  143  S.  W.   112. 

66.  Richardson  v.  Wren,  11 
Ariz.  395,  95  Pac.  124,  16  L.  R. 
A.  (N.  S.)  190;  Wilson  v.  Knight, 
59  Ala.  172;  Fitzpatrick  v.  Papa, 
89  Ind.  17;  McCleery  v.  Wake- 
field, 76  Iowa,  529,  2  L.  R.  A.  529, 
41  N.  W.  210;  Hinds  v.  Pugh,  48 
Miss.  268;  Lane  v.  Logue,  12  Lea. 
(Tenn.)  681.  See  Farmers'  Mer- 
chants' Nat.  Bank  v.  Wallace,  45 
Ohio  St.   153,   12   N.   E.   439. 

67.  Jor-s  V.  Robinson,  77  Ahi. 
499;  Randolph  v.  Webb,  116  Ala. 
135,  22  So.  550;  Hill  v.  Yar 
brough,  62  Ark.  320,  35  S.  W. 
433;  Tripler  v.  MacDonaid  Lum- 
ber Co.,  173  Cai  144,  159  Pac. 
591;  Gilchrist  v.  Gongh,  63  Ind. 
576,    30    Am.    Rep     250,    Koon    v. 


Tramel,  71  Iowa,  132,  32  N.  W. 
243;  De  Mey  v.  Defer,  103  Mich. 
239,  61  N.  W.  524;  Schumpert  v. 
Dillard,  55  Miss.  348;  Dourde- 
doure  v.  Humbert,  85  N.  J.  Eq. 
89,  95  Atl.  742;  O'Brien  v. 
Fleckenstein,  180  N.  Y.  350,  105 
Am.  St.  Rep.  768,  73  N.  E.  30; 
Branch  v.  Griffin,  99  N.  C.  173, 
5  S.  E.  393,  398  {senible);  First 
Nat.  Bank  v.  Lamont,  5  N.  D. 
393,  67  N.  W.  145:  Farmer's  & 
Merchants'  Nat.  Bank  v.  Wallace, 
45  Ohio  St.  153,  12  N  E.  439; 
Pittsburgh  &  C.  R.  Co.  v.  Barker, 
29  Pa.  St.  160;  Far  user's  &  Mer- 
chants' Bank  v.  Citizens'  Nat. 
Bank,  25  S.  D.  91,  125  N.  W. 
642;  Steffian  v.  Milmo  Nat.  Bank, 
69   Tex.   513,   6   S.   W.   823. 

68.  Saffold  V.  Wade,  51  Ala. 
214;  Foorman  v.  Wallace,  75  Cal. 
552,  17  Pac.  680;  Schluter  v. 
Harvey,  65  Cal.  158,  3  Pac.  659; 
Jerome  v.  Carbonate  Nat.  Bank, 
22    Colo.   37,   43    Pnc.   215;    Sutton 


2250  Real  Pbopeety.  [§  574 

garded.*'^  On  principle,  it  would  seem,  the  fonner  view 
is  the  more  satisfactory,  and  such  a  view  is  in  no  way 
inconsistent  with  the  view  that  one  to  w^hom  a  mortgage 
is  given  to  secure  a  pre-existing  debt  is  not  a  pur- 
chaser for  value,  since  there  is,  in  the  latter  case,  no 
relinquishment  of  the  claim.  It  has,  nevertheless,  been 
asserted  by  an  able  writer,^*^  that,  however,  logical  may 
be  the  view  that  a  conveyance  is  on  valuable  considera- 
tion if  executed  in  satisfaction  of  a  debt,  and  is  not  on 
valuable  consideration  if  executed  as  security  for  a 
debt,  such  a  distinction  is  unfortunate  in  its  practical 
results,  as  rendering  it  possible  for  the  creditor,  in  his 
testimony,  to  give  such  a  color  to  the  transaction  as  uiay 
be  most  for  his  benefit,  as  against  a  third  person  not  a 
party  to  the  transaction.  This  is  no  doubt  true,  to 
some  extent  at  least,  but  whether  it  is  desirable  to  ob- 
scure the  legal  principles  applicable  to  a  particular  state 
of  facts  for  the  sake  of  diminishing  the  possibility  of 
perjury,  a  possibility  which  can  never  be  entirely  ex- 
cluded, may  well  be  doubted,  and  it  may  be  remarked, 
moreover,  that  this  is  by  no  means  the  only  case  in 
which  a  person  may  be   affected  by  the  testimony  of 

V.  Fork,  144  Ga.  587,  87  S.  E.  799;  bridge  v.  Allen,  100  Iowa,  582,  69 
Bunn  V.  Schnellbacher,  163  111.  N.  W.  1031;  Western  Grocer  Co. 
328,  45  N.  E.  227  (semble) ;  v.  Alleman,  81  Kan.  543,  27  L. 
Adams  v.  Vanderback,  148  Ind.  R.  A.  (N.  S.)  620,  135  Am.  St. 
92,  62  Am.  St.  Rep.  497.  45  N.  E.  Rep.  398,  106  Pac.  460;  Schloss 
645,  47  N.  E.  24;  Busey  v.  Reese,  v.  Feltus,  103  Mich.  525,  36  L. 
38  Ind.  264;  Hanold  v.  Kays,  64  R.  A.  161,  61  N.  W.  797;  Pan- 
Mich.  439,  8  Am.  St.  Rep.  835,  coast  v.  Duval,  26  N.  J.  Eq.  445; 
31  N.  W.  420;  Soule  v.  Shot-  Dickerson  v.  Tillinghast.  4  Paige 
well,  52  Miss.  236;  State  B.^nk  (N.  Y.)  215,  25  Am.  Dec.  528; 
of  St.  Loais  V.  Frame,  112  Mo.  Howells  v.  Hettrick,  160  N.  Y.  308, 
502,  20  S.  W.  620;  Clements  v.  54  N.  E.  679;  Temple  v.  Osburn, 
Doerner,  40  Ohio  St.  632;  Alstin's  55  Ore.  506,  106  Pac.  16;  Steffian 
Ex'r  V.  Cundiff,  52  Tex.  453;  v.  Milmo  Nat.  Bank,  69  Tex.  513, 
Cammack     v.     Soran,     30     Gratt.  6   S.  W.  823. 

(Va.)    292;    Shufeldt  v.   Pease,   16  70.     2  Pomeroy,  Eq.  Jur.  §  749. 

Wis.  659.  And    see    Retsch    v.    Renehan,    16 

69.     Landv.  Hea,    20  Idaho,    250,  N.   Mex.   541,   120   Pac.   897;    Gest 

118  Pac.  506;    Metropolitan  Bank  v.    Packwood,    34    Fed.    .368. 
V.     Godfrey,     23     111.     579;     Lilli- 


§  574]  Priorities  and  Eecordixg.  2251 

another  person  as  to  a  matter  in  regard  to  which  he 
himself  is  not  in  a  position  to  testify. 

In  a  few  of  the  states  in  which  one  who  receives  a 
conveyance  in  satisfaction  of  an  indebtedness  is  not 
ordinarily  regarded  as  a  purchaser  for  value,  it  has 
been  decided,  apparently,  that  he  is  such  a  purchaser  if, 
at  the  time,  he  relinquishes  security  which  he  holds  for 
the  indebtedness. "^1  But  since  the  satisfaction  and  con- 
sequent extinguishment  of  the  debt  would  necessarily 
release  the  security  for  the  debt,  it  is  not  readily  ap- 
parent why  the  express  relinquishment  of  security 
should,  when  accompanying  a  satisfaction  of  the  debt, 
constitute   a   valuable   consideration. 

(c)    Adequacy  of  consideration.    It  is  general- 


ly agreed  that,  in  order  that  one  may  be  protected  as  a 
purchaser  for  value,  it  is  not  necessary  that  the  con- 
sideration paid  by  him  be  adequate,  that  is,  that  it  equal 
the  full  value  of  the  property."^  On  the  other  hand  it  is 
said  that  one  who  pays  a  merely  "nominal"  considera- 
tion cannot  claim  as  a  purchaser  for  value. '^  What 
degree  of  inadequacy  is  necessary  to  render  the  con- 
sideration merely  nominal  is  a  question  of  difficulty. 

71.  Bunn  v.  SchneUbacher,  163  said  that  the  price  must  be  fair 
111.  328,  45  N.  E.  227;  Grand  and  reasonable.  Collins  v.  Davis, 
Rapids  Nat.  Bank  v.  Ford,  143  132  N.  C.  106,  43  S.  E.  579. 
Mich.  402,  114  Am.  St.  Rep.  668,  73.  Curtis  v.  Riddle,  177  Ala. 
8  Ann.  Cas.  102,  107  N.  W.  76;  128,  59  So.  47;  Morris  v.  Wicks, 
Padgett  V.  Lawrence,  10  Paige  81  Kan.  790,  26  L.  R.  A.  (N.  S.) 
(N.  Y.)    170,  40  Am.  Dec.  232.  681,     106    Pac.     1048;     Tinnin    v. 

72.  Frey  v.  Clifford,  44  Cal.  Brown,  98  Miss.  378,  Ann.  Cas. 
335;  Ennis  v.  Tucker,  78  Kan.  1913A,  1081,  53  So.  780;  Ten 
55,  130  Am.  St.  Rep.  352;  Strong  Eyck  v.  Witbeck,  135  N.  Y.  40,  31 
V.  Whybark,  204  Mo.  341,  12  L.  Am.  St.  Rep.  809,  31  N.  E.  994; 
R.  A.  (N.  S.)  240;  Hume  v.  Abernathy  &  South  &  W.  R.  Co., 
Ware,  87  Tex.  380,  28  S.  W.  150  N.  C.  97,  63  S.  E.  180;  Huff 
935;  Reed  v.  Nunn,  80  C.  C.  A.  v.  Maroney,  23  Tex.  Civ.  App. 
215,  148  Fed.  737;  Bassett  v.  465,  56  S.  W.  754;  Dunn  v. 
Notworthy,  Rep.  temp.  Finch.  Barnum,  2  C.  C.  A.  265,  51  Fed. 
102,  2  White  &  Tudor's  Leading  Fed.  355.  In  Nichols-Stewart  v. 
Caa.    in    Eq.    1.  Crosby,    87    Tex.    443,    29    S.    W. 

But    In    North    Carolina    it    is      380,    it   was   decided    that   a   con- 


2252  Real  Propekty.  [§  57-i 

It  has  been  said  in  this  connection  that  ''a  small 
sum,  inserted  and  paid,  perhaps  because  of  a  popular 
belief  that  some  slight  money  consideration  is  necessary 
to  render  the  deed  valid,  will  not  of  itself  satisfy  the 
terms  of  the  (recording)  statute,  where  it  appears  upon 
the  face  of  the  conveyance,  or  by  other  competent  evi- 
dence, that  it  was  not  the  actual  consideration."^*  This 
statement  was  made  in  connection  with  a  conveyance  to 
a  near  relative,  and  it  indicates,  it  is  conceived,  the 
proper  criterion  for  such  a  case,  that  is,  that  if  the 
transaction  is  in  reality  a  gift,  though  under  the  guise 
of  a  sale,  the  beneficiary  is  not  a  purchaser  for  valuable 
consideration.'^^  It  does  not  seem,  however,  that  one 
who  pays  a  substantial  price  should  be  deprived  of  the 
protection  accorded  a  purchaser  for  value  merely  be- 
cause, by  reason  of  relationship  or  friendship,  he  ac- 
quires the  property  at  a  price  lower  than  would  have 
been  demanded  of  another  person,  except  as  this  may 
tend  to  charge  him  with  notice. 

In  the  case  of  a  transaction  between  persons  who 
are  connected  by  no  ties  of  relationship  or  friendship, 
the  possibility  of  regarding  the  transaction  as  a  gift  is 
excluded,  and  it  can  only  be  regarded  as  a  sale.  Though 
one  pays  only  ten  dollars  for  property  worth  one  thou- 
sand, he  is,  unless  the  transaction  was  intended  as  a 
gift,  actually  a  purchaser,  and  it  is  difficult  to  say  that  he 
is  not  a  purchaser  for  value.  But  that  the  property  is 
offered  to  him  at  such  a  decidedly  inadequate  price  is 
sufficient  to  subject  him  to  a  duty  of  inquiry  as  to  the 

sideration     of     five     dollars     for  968,     the     transaction     was     evi- 

property     worth     eight    thousand  dently  merely  a  gift,  and  it  does 

was  "too  grossly  inadequate."  not  seem  that  the  grantee  should 

74.  Ten  Eyck  v.  Witbeck,  135  have  been  protected  as  a  pur- 
N.  Y.  40,  31  Am.  St.  Rep.  809,  chaser  for  value.  The  view  there 
31  N.  E.  994.  See  also  Martin  v.  stated  that  a  consideration  of  one 
White,  115  Ga.  866,  42  S.  E.   279.  dollar    or    less    is    insufficient    to 

75.  In  Strong  v.  Whybark,  204  entitle  the  purchaser  to  protec- 
Mo.  341,  12  L.  R.  A.  (N.  S.)  240,  tiou,  while  any  greater  sum  is 
120  Am.  St.  Rep.  710,  102   S.  W.  sufficient,   is   most  unsatisfactory. 


§  574] 


Priorities  and  Eecording. 


2253 


existence  of  an  adverse  claim,"*^  and  a  very  great  dis- 
crepancy between  the  consideration  paid  and  the  market 
value  of  the  property  might,  it  seems,  of  itself  justify 
a  finding  that  the  purchase  was  not  bona  fideP'^ 

(d)     Notice    before    payment.      A    purchaser 


who  did  not  pay  the  consideration  before  receiving 
notice  of  the  adverse  right  cannot  claim  priority  thereto, 
even  though  he  had  previously  received  a  transfer  of  the 
legal  title. '^^  He  can  assert  the  adverse  right  as  a 
defense  to  the  claim  for  the  purchase  price,  and  hence 
is  not  in  the  position  of  a  purchaser  for  value. 

(e)    Notice  after  part  payment.     A  purchaser 


to  whom  the  legal  title  has  been  conveyed,  and  who 
paid  part,  but  not  all,  of  the  purchase  money,  before 
obtaining  notice  of  the  adverse  claim,  is  usually  con- 
sidered as  entitled  to  protection  to  the  extent  of  the 
payments  made  by  him  before  receiving  notice."^^     The 


76.  Ante,   §   569,  note  55. 

77.  Dunn  v.  Barnum,  2  C.  C. 
A.  265,  51  Fed.  355;  Reed  v. 
Munn,  80  C.  C.  A.  215,  148  Fed. 
737;  Nichols-Stewart  v.  Crosby, 
87  Tex.  443,  29  S.  W.  380. 

78.  Wells  V.  Morrow,  38  Ala. 
125;  Duncan  v.  Johnson,  13  Ark. 
190;  Beattie  v.  Crewdson,  124 
Cal.  577,  57  Pac.  463;  Donalson 
V.  Thomason,  137  Ga.  848,  74  S. 
E.  762;  Brown  v.  Welch,  18  111. 
343,  68  Am.  Dec.  549;  Schultze 
V.  Houfes,  96  111.  335;  Sillyman 
V.  King,  36  Iowa,  207;  Winlock 
V.  Munday,  156  Ky.  806,  162  S. 
W.  76;  Blanchard  v.  Tyler,  12 
Mich.  339,  86  Am.  Dec.  57;  Fraser 
V.  Fleming,  190  Mich.  238,  157  N. 
W.  269;  Marshall  v.  Hill,  246  Mo. 
1.  151  S.  W.  131;  Holladay  v. 
Rich,  93  Neb.|  491,  140  N.  W. 
794;  Patten  v.  Moore,  32  N.  H. 
382;    Jewett   v.    Palmer,    7   Johns. 

2  R.  P.— 67 


Ch.  (N.  Y.)  65,  11  Am.  Dec.  401; 
Halloran  v.  Holmes,  13  N.  D.  411, 
101  N.  W.  310;  Evans  v.  Tem- 
pleton,  69  Tex.  375,  5  Am.  St. 
Rep.  71,  6  S.  W.  843;  Lamar's 
Ex'r  V.  Hale,  79  Va.  147;  Tibbs 
V.  Zirgle,  55  W.  Va.  49,  104  Am. 
St.  Rep.  977,  2  Ann.  Cas.'421,  46 
S.  E.  701;  Trice  v.  Comstock,  57 
C.  C.  A.  646,  121  Fed.  620,  61 
L.   R.  A.   176. 

79.  Craft  v.  Russel,  67  Ala. 
9;  House  v.  Davis,  196  Ala.  153, 
71  So.  685;  Davis  v.  Ward,  109 
Cal.  186,  50  Am.  St.  Rep.  29,  41 
Pac.  1010;  Donaldson  v.  Thoma- 
son, 137  Ga.  848,  74  S.  E.  762; 
Dickinson  v.  Wright,  56  Mich.  42, 
22  N.  W.  312;  Parker  v.  Foy, 
43  Miss.  260,  5  Am.  Rep.  484; 
Macauley  v.  Smith,  132  N.  Y.  524, 
30  N.  E.  997;  Rector  v.  Wildrick, 
— Okla.— ,  158  Pac.  610;  Youst  v. 
Martin,   3   Serg.   &  R.    (Pa.)    423; 


2254  Real  Property.  [§  574 

mode  of  effecting  this  protection  is,  however,  a  matter  as 
to  which  the  cases  do  not  lay  down  any  uniform  rule. 
It  is  sometimes  stated  that  the  adverse  claimant  cannot 
assert  his  claim  against  the  land  in  the  hands  of  the 
purchaser  without  reimbursing  the  latter  the  amount 
paid  by  him  before  receiving  notice,-'^  while,  by  other 
cases,  the  adverse  claimant  is  not  entitled,  as  against 
the  purchaser,  to  recover  the  land,  but  can  merely  assert 
his  claim  to  the  extent  of  the  purchase  money  not  paid 
at  the  time  of  the  purchaser's  acquisition  of  notice, 
such  unpaid  purchase  money  being  thus  in  effect  sub- 
stituted for  the  land.^^  As  between  these  two  methods 
of  adjusting  the  rights  of  the  parties,  that  one  should 
be  adopted  which,  in  view  of  the  facts  of  the  case,  is 
most  likely  to  produce  an  equitable  result,  and  this 
would  depend  to  some  extent,  it  seems,  upon  the  re- 
spective portions  of  the  purchase  money  paid  and  un- 
paid at  the  time  of  the  acquisition  of  notice,  and  also 
upon  the  relation  of  the  agreed  price  to  the  actual 
value  of  the  property.^-  In  order  that  the  purchaser 
may  obtain  reimbursement  for  the  amount  paid  by  him 

Sparks  v.  Taylor,   99   Tex.   411,   6  E.   644. 

L.   R.   A.    (N.    S.)    381,   90    S.    W.  If    the    purchaser    has    already 

485.     But  see  Wormley  v.  Worm-  been  reimbursed  out  of  the  rents 

ley,  8  Wheat.    (U.  S.)    421,  450,  5  and    profits    of    the    property,    he 

L.  Ed.  651;   Doswell  v.  Buchanan,  cannot,    it    has    been    held,    claim 

3     Leigh     (Va.)      365;     Heck     v.  any    further    reimbursement     for 

Fink,   85   Ind.   9.  the  payments  made  by  him.  Beck 

80.     Marchbanks    v.    Banks,    44  v.  Ulrich,  13  Pa.  636,  16  Pa.  499. 

Ark.    48;    Henry   v.    Phillips,    163  81.     Flagg    v.    Mann,    2    Sumn. 

Cal.  135,  124  Pac.  837;   Kitteridge  486,   563;    Dowell   v.   Applegate,   7 

V.    Chapman,   36   Iowa,    348;    Ben-  Fed.  Rep.  881;    Baldwin  v.  Sager, 

nett     V.     Titherington,     6     Bush  70    111.     503;     Burton    v.    Regan. 

(Ky.)    193;    Wiles  v.   Shaffer,  175  75    Ind.    77;    Green    v.    Green,    41 

Mich.    704,    141   N.    W.    599    (sem-  Kan.  472,  21  Pac.  586;    Hardin  v. 

hie);     Dougherty    v.    Cooper,    77  Harrington,   11   Bush    (Ky.)    367; 

Mo.    528;     Haughout    v.    Murphy,  Sparks    v.    Taylor,    99    Tex.    411, 

22     N.     J.     Eq.     531;     Fluegel     v.  427,    6    L.   R.   A.    (N.    S.)    381,    90 

Henschel,    7    N.    D.    276.    66    Am.  S.    W.    485. 

St.  Rep.  642,  74  N.  W.  996;  Webb  82.     See     Durst    v.     Daugherty, 

V.    Bailey,    41   W.   Va.    463,    23    S.  81   Tex.   650,   17    S.   W.   388. 


§  574]  Priorities  and  Eecording.  2255 

before  notice,  he  must,  it  has  been  held,  state  such 
claim,  with  the  grounds  thereof,  in  his  pleading.^^ 

If  the  purchaser  makes  improvements  on  the  prop- 
erty before  receiving  notice  of  the  adverse  claim,  he  is 
entitled,  as  a  condition  of  recovery  of  the  land  by  the 
claimant,  to  reimbursement  of  the  cost  of  the  improve- 
ments as  well  as  of  the  payments  innocently  made  by 
him.^^  this  according  with  the  rule  ordinarily  ai)plied 
in  ecj[uity  in  favor  of  an  innocent  purchaser. ^° 

(f)     Payment    by    note.      The    fact    that    the 

purchaser  has  given  a  non-negotiable  note  for  the 
price  does  not  constitute  him  a  purchaser  for  value, 
since  he  may  be  relieved  therefrom  in  equity  upon  a 
showing  that  the  title  to  the  property  has  failed.^^^ 

If  the  purchaser  gives  a  negotiable  note  on  account 
of  the  price,  and  such  note  is  transferred  to  a  bona  fide 
holder  for  value,  the  purchaser  of  the  property,  though 
he  subsequenth"  receives  notice  of  an  adverse  claim  to 
the  property,  cannot  avoid  payment  of  the  note,  and 
he  is  consequently  in  the  position  of  one  who  has  paid 
value.^^     But  if  he   receives  notice  before   the   note   is 

83.  Freeman  v.  Pullen,  130  Ala.  Dec.  401;  Wood  v.  Rayburn,  18 
653,  31  So.  451;  Mackey  V.  Bowles,  Ore.  3,  22  Pac.  521  (semblc) ; 
98  Ga.  730,  25  S.  E.  834;  Donal-  Union  Canal  Co.  v.  Young,  1 
son  V.  Thomason,  137  Ga.  848,  74  Whart.  (Pa.)  410,  30  Am.  Dec. 
S.  E.  762;  Webb  v.  Bailey,  41  212;  Beck  v.  Ulrich,  13  Pa.  St. 
W.  Va.  463,  23  S.  E.  644.  And  636,  53  Am.  Dec.  507;  Lamoille 
see  Freeman  v.  Pullen,  130  Ala.  County  Sav.  Bank  &  Trust  Co. 
653,    31    So.    451.  v.    Belden,    90    Vt.    535,     98    Atl. 

84.  Lewis   v.    Phillips,    17    Ind.  1002. 

408;    Florence    Sewing   Mach.    Co.  86.     Beebe  Stave  Co.  v.  Austin, 

V    Zeigler,   58  Ala.   221;    Youst  v.  92    Ark.    248,    135    Am.    St.    Rep. 

Martin,   3    Serg.    &   R.    (Pa.)    423.  172,     122    S.    W.    482;     Davis    v. 

85.  Ante,   §  274.  Ward.    109    Cal.    186,    50    Am.    St. 
85a.     Marchbanks   v.   Banks,   44  Rep.  29,  41  Pac.  1010;    Donaldson 

Ark.   48;    Kitteridge  v.   Chapman,  v.   Thomason,    137   Ga.   848,   74    S. 

36  Iowa,  348;   Blanchard  v.  Tyler,  E.  762;   Partridge  v.  Chapman,  81 

12    Mich.    339,    86    Am.    Dec.    57;  111.     137;     Rush     v.    Mitchell,     71 

Haughwout   V.    Murphy,    22    N.    .1.  Iowa,      333,      32      N.      W.      367: 

Eq.     531;     Jewett    v.     Palmer.     7  Daugherty    v.    Northern    Coal    & 

Johns.    Ch.    (N.    Y.)    63,    11    Am.  Coke    Co.,    174    Ky.    423,    192    S. 


2256  Real  Property.  [§  574 

negotiated,  he  is,  it  seems,  in  a  position  to  prevent  the 
subsequent  negotiation  of  the  note,  and  can  not  there- 
after pay  the  note,  and  assert  that,  by  reason  of  such 
payment,  he  is  a  ho72a  fide  purchaser  for  value.^^  Oc- 
casionally it  appears  to  have  been  considered  that  the 
purchaser,  if  he  has  given  a  negotiable  note,  is  pro- 
tected as  a  purchaser  for  value,  even  though  it  has  not 
been  negotiated  at  the  time  of  his  receipt  of  notice  of 
an    adverse    claim. ^^ 

is)    Payment  without  acquiring  legal  title.  The 


cases  but  rarely  consider  whether  one  who  pays  the 
agreed  consideration,  without  at  the  time  taking  a  con- 
veyance, is  to  be  protected  as  against  a  prior  unrecorded 
conveyance  of  which  he  has  at  the  time  no  notice.  He 
acquires  at  most  in  such  case  merely  an  equitable  as 
distinguished  from  a  legal  title,  and  whether  the  holder 
of  an  equitable  title  is  to  be  regarded  as  within  the 
protection  of  the  recording  act  is  a  question  of  the 
construction  of  such  act.^^  Furthermore,  if  the  record- 
ing act  protects  a  subsequent  purchaser  only  when  his 
conveyance  is  first  recorded,^^'  one  paying  for  land 
without  at  the  time  taking  a  conveyance  of  the  legal  title 
would  not  be  protected  unless  he  has  a  contract  which 
is  susceptible  of  record  as  a  conveyance,  and  this  is 
first  recorded,  or,  in  case  such  a  contract  is  not  regarded 
as  a  conveyance  within  the  statute,  as  might  well  be  the 
case,  unless  he  subsequently  obtains  a  conveyance,  and 
this  is  first  recorded.  If  a  conveyance  of  the  legal  title 
is  thus  subsequently  obtained  by  the  purchaser  after 
he  has  acquired  notice  of  the  prior  unrecorded  convey- 

W.    501;    Digby   v.    Jones,    67    Mo.  618;    Citizens'  Bank  of  Parker  v. 

104.  Shaw,  14  S.  D.  197,  84  N.  W.  779. 

87.  Baldwin  v.  Sager.  70  111.  But  as  to  Texas  see  Nellius  v. 
503;  Freeman  v.  Denning.  3  Thompson  Bros.  Lumber  Co., — 
Sandf.   Ch.    (N.    Y.)    327.  Tex.   Civ.   App— ,   156   S.   W.   259. 

88.  Tillman  v.  Heller,  78  Tex.  89.  Ante.  §  567 (m),  notes  32, 
597,   11  L.   R.   A.   628,   22   Am.   St.  33. 

Rep.   77,   14    S.  W.   700;    Dodd    v.  90.     Ante,      §      567  (m),      notes 

Gaines,    82    Tex.    429,    18    S.    W.      11-12. 


§  575]  Priorities  and  Eecordixg.  2257 

ance,  there  is  some  analogy  to  the  case  of  the  holder  of 
a  later  equity  who,  after  acquiring  notice  of  an  earlier 
equity,  obtains  the  legal  title.^^  That  is,  the  grantee  in 
the  prior  conveyance  might  be  considered,  as  regards 
the  subsequent  purchaser,  as  having  merely  an  equity, 
and  adopting  such  a  view,  the  question  whether  the 
subsequent  purchaser  could  secure  priority  by  obtaining 
a  conveyance  with  notice  of  the  prior  unrecorded  con- 
veyance would  appear  to  be  determinable  with  reference 
to  the  rule  adopted  in  that  jurisdiction,  as  between  the 
holders  of  equities.^^ 

§  575.  Purchasers  with  notice  from  purchasers 
without  notice.  A  purchaser  for  value  may  not  only  en- 
joy the  property  free  from  any  adverse  claim  of  which 
he  had  no  notice  at  the  time  of  his  purchase,  but  he  may 
algo  transfer  his  rights  in  this  respect  to  others,  and 
the  fact  that  his  alienee  himself  has  notice  is  immaterial, 
it  being  thus  the  rule  that  a  purchaser  with  notice  from 
a  purchaser  without  notice  has  all  the  rights  of  the  lat- 
ter.^^  Were  the  rule  otherwise,  a  purchaser  without 
notice  might  be  unable  to  dispose  of  his  property  for 
value.  The  one  exception  to  this  rule  exists  when  the 
second  purchaser  had  previously  held  the  property  sub- 

91.  Ante,  §  566(b),  notes  10-  Varney  v.  Deskins,  146  Ky.  27, 
13.  141    S.    W.    411;     Livingstone    v. 

92.  See,  as  apparently  apply-  Murphy,  187  Mass.  315.  105  Am. 
ing  the  analogy  suggested.  Whea-  St.  Rep.  400,  72  N.  E.  1012; 
ton  V.  Dyer,  15  Conn.  307;  Paul  Barksdale  v.  Learnard.  112  Miss. 
V.  McPherrin,  48  Colo.  522,  21  861,  73  So.  736;  Craig  v.  Zimmer- 
Ann.   Cas.   460,   111   Pac.    59.  man,    87    Mo.    475,    56    Am.    Rep. 

93.  Harrison  v.  Forth,  Finch.  466;  McGrath  v.  Norcross,  78  N. 
Prec.  Ch.  51;  Whitfield  v.  Rid-  J  Eq.  120,  79  Atl.  85,  82  N.  J. 
die,  78  Ala.  99;  White  v.  Moffett,  Eq.  367,  91  Atl.  1069;  Card  v. 
108  Ark.  490,  158  S.  W.  505;  Patterson,  5  Ohio  St.  319;  Master- 
Moore  V.  Allen,  26  Colo.  197,  77  son  v.  Crosby, — Tex  Civ.  App. — , 
Am.  St.  Rep.  255,  57  Pac.  698;  152  S.  W.  173;  Bernard  v.  Oon- 
Roe  V.  Cato,  27  Ga.  637;  Buck  son,  58  Wash.  191,  137  Am.  St. 
V.  Foster,  147  Ind.  530,  62  Am.  St.  Rep.  1051,  108  Pac.  439;  KinjT 
Rep.  427,  46  N.  E.  920,  East  v.  v.  Porter,  69  W.  Va.  80,  71  S.  E. 
Pugh,  71  Iowa,  162,  32  N.  W.  309;  202. 


2258  Real  Property.  [§§  576,  577 

ject  to  such  adverse  claim.  That  is,  one  having  notice 
cannot,  by  disposing  of  the  property  to  an  innocent 
purchaser,  and  subsequently  reacquiring  it,  obtain  the 
right  to  hold  it  free  from  such  claim.^^ 

§  576.  Purchasers  without  notice  from  purchasers 
with  notice.  A  purchaser  of  land  without  notice,  either 
from  the  records  or  otherwise,  of  a  prior  outstanding 
claim,  is  not  affected  thereby,  even  though  his  grantor 
had  actual  notice  of  the  claim.^^  Were  a  purchaser  af- 
fected by  the  fact  of  notice  to  his  grantor,  one  could 
never  purchase  with  safety,  since  one  can  never  be  cer- 
tain that  his  vendor  is  without  notice  of  some  adverse 
claim. 

§  577.  Purchasers  at  execution  sales.  A  purchaser 
at  a  sale  on  execution  stands,  in  most  jurisdictions,  in 
the  position  of  any  other  purchaser  for  value,  and 
takes  free  from  any  equitable  claims  upon  the  land,  or 
claims  based  on  unrecorded  instruments,  of  which  he  has 
no  notice,  actual  or  constructive,  at  the  time  of  his 
purchase.^^     In  some  states,  however,  an  exception  to 

94.  Simpson  v.  Montgomery,  25  Young  v.  Wiley,  183  Ind.  449, 
Ark.  365,  99  Am.  Dec.  228;  Huling  107  N.  E.  278;  Trull  v.  Bigelcw, 
V.  Abbott,  86  Cal.  423,  25  Pac.  4;  16  Mass.  406,  8  Am.  Dec.  144; 
Bourquin  v.  Bourquin,  120  Ga.  Mullins  v.  Butte  Hardware  Co., 
115,  47  S.  E.  639;  Johnson  v.  25  Mont.  525,  87  Am.  St.  Rep. 
Gibson,  116  111.  294,  6  N.  E.  205;  430,  65  Pac.  1004;  Anderson  v. 
Trentman  v.  Eldridge,  98  Ind.  Ptoberts,  18  Johns.  (N.  Y.)  515, 
525;  Bailey  v.  Binney,  61  Me.  9  Am.  Dec.  235;  Odom  v.  Rid- 
361;  Clark  v.  McNeal,  114  N.  Y.  dick,  104  N.  C.  515,  7  L.  R.  A. 
287,  11  Am.  St.  Rep.  638,  21  N.  118,  17  Am.  St.  Rep.  686,  10  S. 
E.  405;  Church  v.  Ruland,  64  E.  609;  Coombs  v.  Aborn,  29  R. 
Fa.  St.  432;  Rogis  v.  Barnatowich,  J.  40,  14  L.  R.  A.  (N.  S.)  1248, 
36  R.  I.  227,  89  Atl.  838;  PhiUis  08  Atl.  817;  London  v.  Youmans, 
V.  Gross,  32  S.  D.  438,  143  N.  31  S.  C.  147,  17  Am.  St.  Rep. 
W.  373;  Yost  v.  Crutcher,  112  17,  9  S.  E.  775;  Bowman  v.  Hol- 
Va.  870,  72  S.  E.  594.  land,  116  Va.  805,  83  S.  E.  393. 

95.  Lee  v.  Cato,  27  Ga.  637,  73  90.  Meek  v.  Skeen,  60  Fed. 
Am.  Dec.  746;  Lewis  v.  PhiUips,  322,  8  C.  C.  A.  641;  riallett  v. 
17    Ind.    108,    79    Am.    Dec.    457  Alexander,   50   Colo.   37,  34   L.   R. 


§  577] 


Peiorities  and  Eecoeding. 


2259 


this  general  rule  is  recognized  in  case  the  judgment 
creditor  is  the  purchaser  at  the  execution  sale,  usually 
on  the  theory  that  he  is  not  a  purchaser  for  value,^'  an 
exception  which  is  denied  in  other  states.^*  And  in  a 
few  states,  it  seems,  a  purchaser  at  execution  sale 
takes  merely  such  title  as  the  execution  debtor  had.^^'^ 


A.  (N.  S.)  328,  Ann.  Cas.  1912B, 
1277,  114  Pac.  490;  Tyler  v. 
Johnson,  61  Fla.  730,  55  So.  870; 
Gorman  v.  Wood,  68  Ga.  524; 
Rogers  v.  Smith,  146  Ga.  373, 
91  S.  E.  414;  McFadden  v. 
Worthington,  45  111.  362;  Home 
Savings  &  State  Bank  v.  Peoria 
Agricultural  &  Trotting  Society, 
206  111.  9,  99  Am.  St.  Rep.  132, 
69  N.  E.  17  isemble);  McMillan 
V.  Hadley,  78  Ind.  590;  Gower 
V  Doheney,  33  Iowa,  36;  Lee  v. 
Bermingham,  30  Kan.  312,  1  Pac. 
73;  "Walker  v.  McKnight,  15  B. 
Mon.  (Ky.)  467;  Dow  v.  Whit- 
ney, 147  Mass.  1,  16  N.  E.  722; 
Hart  V.  Gardner,  81  Miss.  650, 
33  So.  442,  497;  Paine's  Lessee 
V.  Mooreland,  15  Ohio,  435,  45 
Am.  Dec.  585;  Boynton  v.  Win- 
slow,  37  Pa.  St.  315. 

97.  Sturdivant  v.  Cook,  81 
Ark.  279,  98  S.  W.  964;  Moun- 
tain Home  Lumber  Co.  Ltd.  v. 
Swartwout,  30  Idaho,  559,  166 
Pac.  271;  Lewis  v.  Taylor,  96 
Ky.  556,  29  S.  W.  444;  Banning 
V.  Edes,  6  Minn.  402;  McAdow 
V.  Black,  6  Mont.  601,  13  Pac. 
377;  McClenaghan  v.  McClena- 
ghan,  1  Strob.  E(i.  (S.  C.)  295,  47 
Am.  Dec.  534;  McKamey  v. 
Thorp,  61  Tex.  648;  American 
Sav.  Bank  &  Trust  Co.  v.  Hel- 
gesen,  67  Wash.  572,  122  Pac.  26; 
Collins  V.  Smith,  57  Wis.  284,  15 
N.   W.    192. 

98.  Hunter  v.   Watson,   12   Cal. 


363,  73  Am.  Dec.  543;  Riley  v. 
Martinelli,  97  Cal.  575,  21  -L.  R. 
A.  33,  33  Am.  St.  Rep.  209,  32 
Pac.  579;  Lusk  v.  Reel,  36  Fla. 
418,  51  Am.  St.  Rep.  32,  18  So. 
582;  Pugh  v.  Highley,  152  Ind. 
252,  71  Am.  St.  Rep.  327,  44  L. 
R.  A.  392,  53  N.  E.  171;  Hallo- 
way  V.  Platner,  20  Iowa,  121,  89 
Am.  Dec.  517;  Gower  v.  Doheney, 
33  Iowa,  36;  McNamara  v.  Mc- 
Namara,  167  Iowa,  479,  149  N. 
W.  642;  Columbia  Bank  v. 
Jacobs,  10  Mich.  349,  81  Am. 
Dec.  792;  Sipley  v.  Wass,  49  N. 
J.  Eq.  463,  24  Atl.  463;  Wood 
V.  Chapin,  13  N.  Y.  509,  67  Am. 
Dec.  62;  Sternberger  v.  Rag- 
land,  57  Ohio  St.  148,  48  N.  E. 
811. 

98a.  Gray  v.  Denson,  129  Ala. 
406,  30  So.  595;  Hendrix  v. 
Southern  Ry.  Co.,  130  Ala.  205, 
89  Am.  St.  Rep.  27,  30  So.  596; 
Frost  V.  Yonkers  Sav.  Bank,  70 
N.  Y.  553;  Clute  v.  Emmerich, 
99  N.  Y.  342,  2  N.  E.  6;  Hicks 
v.  Skinner,  71  N.  C.  539;  Bur- 
gin  V.  Burgin,  82  N.  C.  196. 

Occasionally  the  innocent  pur- 
chaser at  execution  sale  is  pro- 
tected as  against  unrecorded  in- 
struments which  might  have  been 
recorded,  but  not  as  against 
equities  which  were  not  sus- 
ceptible of  record.  Tennant  v. 
Watson,  58  Ark.  252,  24  S.  W. 
495;  Mississippi  Valley  Co.  v. 
Chicago,    St.    L.    &    N.    0.    R.    Co., 


2260  Eeal  Property.  [§  578 

Even  though  the  purchaser  at  execution  sale  has 
notice  of  the  adverse  claim  of  another,  he  takes  the  land 
unaffected  thereby,  if  the  rights  of  the  judgment  cred- 
itors were  superior  thereto,  his  position  being  analogous 
to  that  of  a  purchaser  with  notice  from  a  purchaser 
without  notice.  Consequently,  when,  as  may  be  the  case 
in  a  number  of  states,^''  the  lien  of  the  judgment  or 
execution  is  superior  to  an  equity  or  conveyance  which 
is  prior  in  point  of  time,  owing  to  the  want  of  notice 
thereof  to  the  judgment  creditor,  the  purchaser  under 
the  execution,  even  though  having  notice,  is  not  affected 
by  such  equity  or  claim. ^  But  if  the  lien  of  the  judg- 
ment or  execution  is  subject  to  a  pre-existing  equity  or 
conveyance,  either  because  the  judgment  creditor  had 
notice  thereof,  or  because  such  is  the  law  of  the  state,^ 
the  purchaser  at  execution  sale,  if  he  has^notice  of  such 
outstanding  right  in  a  third  person,  'akes  subject 
thereto."* 

§  578.  Burden  of  proof.  Regarding  the  question 
of  burden  of  proof,  in  its  general  aspect,  in  accordance 
with  the  statement  of  a  leading  authority  on  the  law  of 
evidence,^  as  merely  one  "of  policy  and  fairness  based 
on  experience  in  the  different  situations,"  it  is  not 
surprising  that  the  courts,  in  imposing  such  burden  in 

58  Miss.   846;    Lissa   v.   Posey,   64  (Tenn.)    420;    Grace  v.   Wade,   45 

Miss.  362,  1   So.  500.  Tex.    522. 

99.     Ante,    §    567 (m),    note    47.  2.     Post,  §  670. 

1.     Stevenson  v.  Texas  &  P.  Ry.  3.     Koch    v.    Wilcoxon,    30    Cal. 

Co.,    105    U.    S.    703,    26    L.    Ed.  App.    517,    158    Pac.    1048;     Shirk 

1215;     Motley    v.    Jones,    98    Ala.  v.   Thomas,  121  Ind.   147,  16  Am. 

443,  13  So.  872;    Banner  v.  Crew,  St.     Rep.     381,     22     N.     E.     976; 

137   Ala.    617,    34    So.    822;    Doyle  Churchill  v.  Morse,  23  Iowa,  229, 

V.  Wade,   23   Fla.   90,   11   Am.    St.  92  Am.  Dec.  422;  Tate  v.  Sanders, 

Rep.    334,    1    So.    516;    Guiteau    v.  245     Mo.     186,     149     S.     W.     485; 

Wisely,    47    111.    433;     Hughes    v.  Moyer  v.  Hinman,  13  N.  Y.  180; 

Williams,    218    Mass.    448,    105    N.  Cantwell  v.  Barker,  62  Ore.  12,  124 

E     1056;     Sharp    v.    Shea,    32    N.  Pac.  264. 

J.    Eq.    65;     Herring    v.    Cannon,  4.     4     Wigmore,     Evidence,      § 

21    S.   C.    212,   23   Am.    Rep.    661;  2486. 
Butler     V.     Maury,     10     Humph. 


§  578]  Priorities  and  Eecording.  2261 

connection  with  the  issue  of  purchase  for  value  without 
notice,  are  by  no  means  in  harmony.  The  claim  by  a 
subsequent  purchaser  to  priority  may  be  based,  in  the 
particular  case,  on  the  equitable  doctrine  of  bona  fide 
purchaser  for  value,  as  it  exists  apart  from  statute,  or 
on  the  statutory  provision  for  the  recording  of  con- 
veyances, and  the  rules  as  to  the  burden  of  proof  are  not 
necessarily  the  same  in  both  cases. ^  The  courts  do  not 
however,  ordinarily  suggest  any  distinction  between  the 
two  cases,  in  this  regard,  and  the  decisions  hereafter 
cited  in  regard  to  the  burden  of  proof  in  the  one  case 
are  usually,  so  far  as  appears  from  the  language  of  the 
opinions,  applicable  as  well  in  the  other. 

In  this  connection,  as  in  others,  the  question  of  the 
burden  of  proof  is  somewhat  complicated  by  the  fact 
that  the  phrase  is  used  in  two  senses,  that  is,  in  the 
sense  of  the  risk  of  non  persuasion  of  the  jury  or  other 
tribunal,  and  also  in  the  sense  of  the  burden  of  produc- 
ing evidence.^  In  the  decisions  here  referred  to,  in 
regard  to  the  burden  of  proof  as  to  purchase  for  value 
without  notice,  the  courts  do  not  ordinarily  attempt  to 
distinguish  between  these  two  meanings  of  the  i^hraso, 
and  it  may  l)e  assumed  that,  in  stating  that  the  burden 
of  proof  is  on  the  subsequent  purchaser,  or  on  the 
holder  of  tlie  prior  equity  or  unrecorded  instrument,  as 
tjie  case  m.iy  be,  they  mean  that  such  person  has  both 
burdens.  o]ie  of  them,  however,  that  of  introrhicing  evi- 
dence, being  susceptible  of  being  subsequently  shifted 
to  the  other  party. 

There  are  a  number  of  authorities  to  the  eifect 
that  one  who  asserts  an  equity  against  a  purchaser  has 
the  burden  of  showing  that  the  latter  purchased  with 

5.     See    Bell    v.    Pleasant,     145  hoft,  1  Neb.    (Unoff.)    8.  95  N.  W. 

Cal.    410,    104    Am.    St.    Rep.    61,  352. 

78    Pac.    957;     McAlpine    v.    Bur-  6.     4     Wigraore,     Evidenco,      § 

nett,    2.3    Tex.    649;     Johnson    v.  2485     et    seq.;    2     Chamborlayno, 

Newman,    43    Tex.    628;     Kimball  Evidence,  §   936  et  srq.;  Phipson, 

V.  Houston  Oil  Co.,  100  Tex.  3:!6,  Evidence    (4th    Ed.)    22   et   scq. 
99   S.   W.   852;    Sanely   v.   Crepen- 


2262 


Eeal  Pkopeety, 


[^  578 


nolice  of  the  equity/  and  in  support  of  such  a  view  it 
has  been  suggested*  that,  regarding  an  equitable  claim 
as  in  its  nature  a  mere  right  in  personam,  even  when  it 
is  referred  to  as  an  equitable  interest  or  estate,**  it 
seems  reasonable  that  one  asserting  such  a  claim  against 
a  person,  not  originally  subject  thereto,  merely  by 
reason  of  his  having  purchased  certain  property,  should 
be  required  to  show  that  the  purchase  was  under  such 
circumstances  as  to  make  the  purchaser  so  subject.  In 
some  jurisdictions,  however,  a  contrary  view  has  been 
adopted,  to  the  effect  that  the  purchaser  has  the 
burden  of  showing  lack  of  notice  on  his  part  of  the 
prior  equity.^" 


7.  Arnett  v.  Handley,  185  Ala. 
Jl9,  64  So.  66;  Bell  v.  Pleasant. 
145  Cal.  410,  104  Am.  St.  Rep. 
61,  78  Pac.  957;  Kowalsky  v. 
Kimberlin,  173  Cal.  506,  160  Pac. 
673;  Johansen  v.  Looney,  30 
Idaho,  123,  163  Pac.  303;  Easter 
V.  Severln,  64  Ind.  375;  Fields 
V.  Stamper,  177  Ky.  323,  197  S. 
W.  919;  Molony  v.  Ro'irke,  100 
Mass.  190;  Upton  v.  Betts,  59 
Neb.  724,  82  N.  W.  19;  Holland 
V.  Brown,  140  N.  Y.  344,  35  N. 
E.  577  isemhle);  Newton  v.  Mc- 
Lean, 41  Barb.  (N.  Y.)  285; 
Wilkins  v.  Anderson,  11  Pa.  399; 
Giles  V.  Hunter,  10.3  N.  C.  — , 
194,  9  S.  E.  549;  Meador  Bros. 
V.  Hines,  —  Tex.  Civ.  App.  — , 
165  S.  W.  915;  Rogers  v.  Hous- 
ton, 94  Tex.  403,  60  S.  W.  869; 
Teagarden  v.  R.  B.  Godley  Lum- 
ber Co.,  105  Tex.  616,  154  S.  W. 
973;  Crane's  Nest  Coal  Co.  v. 
Virginia  Iron,  Coal  &  Coke  Co., 
108  Va.  862,  62  S.  E.  954,  1119; 
Scott  V.  Farnan,  55  Wash.  336; 
Cassiday  Fork  Boom  &  Lumber 
Co.  V.  Terry,  69  W.  Va  572,  73 
S.  E.  278.  See  Daniell,  Chan- 
cery  Pleading   and   Practice    (7th 


Fd.)  494;  Langdell,  Equity 
Pleading  (1st  Ed.)  §§  111,  141, 
142;  Martin  v.  Carlisle,  46  Okla. 
268,    148   Pac.   833    (semble). 

8.  Langdell,  Op.  Cit.  §§  141, 
142. 

9.  Ante,    §    103 (by. 

10.  Bates  v.  Bigelow,  80  Ark. 
86,  96  S.  W.  125;  Smith  v.  J. 
R.  Newberry  Co.,  21  Cal.  App. 
432,  131  Pac.  1055;  Koebel  v. 
Doyle,  256  111.  610,  100  N.  E. 
154;  Garritson  v.  Bray,  277  111. 
158,  115  N.  E.  195;  Hume  v. 
Franzen,  73  Iowa,  25,  34  N.  W. 
490;  Hannan  v.  Seidentopf,  113 
Iowa,  658,  86  N.  W.  44;  Ludo- 
wese  V.  Amidon,  124  Minn.  288, 
144  N.  W.  965;  Connecticut  Mut. 
Life  Ins.  Co.  v.  Smith,  117  Mo. 
261,  38  Am.  St.  Rep.  656,  22  S. 
W.  623;  Stephenson  v.  Kilpat- 
rick,  166  Mo.  262,  65  S.  W.  773; 
Upton  V.  Betts.  59  Neb.  724,  82 
N.  W.  19;  Gallatian  v.  Cunning- 
ham, 8  Cow.  (N.  Y.)  382;  At- 
lanta &  C.  A.  L.  R.  Co.  V.  Victor 
Mfg.  Co.,  93  S.  C.  397,  76  S.  E. 
1091;  Balfour  v.  Hopkins,  93 
Fed.  570;  Tobey  v.  Kilbourne, 
222   Fed.    760,    138    C.    C.   A.    308; 


§  578] 


Peioeities  and  Eecording. 


2263 


In  some  jurisdictions  one  who  claims  priority  as  a 
bona   fide    purchaser    over    an    earlier    conveyance    by 
reason  of  its  absence  from  the  records,  has  the  burden 
of  showing  that  he  is  such  a  purchaser,  that  is,  that  he 
paid  value  without  notice  of  such  unrecorded  convey- 
ance.ii      The    theory   of   these    decisions    appears    ordi- 
narily to  be  that,  the  conveyance,  though  not  recorded, 
being  perfectly  valid  as  a  conveyance  of  the  legal  title' 
and  insufficient  as  such  only  as  against  purchasers  for 
value   without  notice,   it  is  for   the   person   seeking  to 
bring  himself  within  this  privileged  class  to  show  that 
he  is   properly  a  member  thereof.     In   a   considerable 
number  of  states,  on  the  other  hand,  one  claiming  under 
an  unrecorded  conveyance   is   regarded  as   havino-   the 
burden   of   showing    that    a    subsequent   purchase?  had 
notice    of    such    conveyance,^^    a    view    which    has    oc- 


See  Boone  v.  Chiles,  10  Pet.  (U. 
S.)  177,  211,  9  L.  Ed.  3S8;  Atty. 
Gen.  V.  Biphosphated  Guano  Co., 
11    Ch.    Div.    336. 

11.  Bell  V.  Pleasant,  145  Cal. 
410,  104  Am.  St.  Rep.  61,  78  Pac. 
958;  Gardner  v.  Early,  72  Iowa, 
518,  34  N.  W.  311;  Ludowese  v. 
Amidon,  124  Minn.  288,  144  N 
W.  965;  Shraiberg  v.  Hanson, 
138  Minn.  80,  163  N.  W.  1032; 
Brown  v.  Tuschoff,  235  Mo.  449, 
138  S.  W.  497;  Dundee  Realty 
Co.  V.  Leavitt,  87  Neb.  711,  30 
L_  R.  A.  (N.  S.)  389,  127  N.  W. 
1057;  Kimball  v.  Houston  Oil 
Co.,  100  Tex.  336,  99  S.  W.  852; 
Ryle  V.  Davidson,  102  Tex.  233 
115  S.  W.  28;  Scott  v.  Farnham, 
55  Wash.  336,   104  Pac.  639. 

In  Bruce  v.  Overton,  54  Okla. 
350,  154  Pac.  340,  the  burden  of 
proof  is  placed  on  the  subsequent 
purchaser  on  the  ground  that  the 
facts  are  peculiarly  within  his 
knowledge. 

In     Texas,     apparently,      while 


the  burden  of  proof  rests  on 
a  subsequent  purchaser,  it  doer, 
not  rest  on  a  subsequent  credi- 
tor. Rule  V.  Richards,  —  Tex. 
Civ.  App.  —  159  S.  W.  386. 
A  subsequent  mortgagee  is  a 
purchaser  and  not  a  creditor 
within  this  rule.  Turner  v. 
Cochran,  94  Tex.  480,  61  S  W 
£23. 

12.     Gratz     v.     Land     &     River 
Imp.    Co.,    82    Fed.    381,    27   C.    C. 
A.   305,   40   L.   R.   A.   393;    Center 
V.   Planters'   &   M.    Bank,   22   Ala. 
743;     Richards    v.    Steiner    Bros., 
166  Ala.  353,  52   So.  200;    Osceola 
Land     Co.     v.     Chicago     Mill     & 
Lumber    Co.,    84    Ark.    1,    103    S. 
W.     609;     Jones     v.     Ainell,     123 
Ark.    532,    186    S.    W.    65;     Fein- 
berg  v.   Stearns,  56  Fla.  279,   131 
Am.    St.    Rep.    119,    47    So.    797; 
Ai)thony     v.     Wheeler,     130     111. 
128,    17    Am.    St.   Rep.    281,   22    N. 
E.    494;     Lowden    v.    Wilson,    233 
111.    340,    84    N.    E.    245;    McGuire 
v.    Gibbert,    270    111.    160,    110    N. 


2264 


Eeal  Property. 


[§  578 


casionally  been  in  terms  based  on  the  theory  that  one 
who  was  negligent  in  having  his  conveyance  recorded 
cannot  thereby  impose  a  burden  upon  another,^'^  and 
occasionally  on  the  theory  that  one  who  purchases  with 
notice  of  the  prior  conveyance  is  guilty  of  fraud,  and 
that  this  will  never  be  presumed.^^ 

It  has  been  held  that,  even  though  the  burden  is  on 
the  adverse  claimant  as  against  a  purchaser  to  show 
notice  to  the  latter,  a  purchaser  who  admits  notice  has 
the  burden  of  showing  that  the  one  from  whom  he 
purchased  was  a  bona  fide  purchaser,  so  that  he 
would  be  protected  as  a  purchaser  with  notice  from  a 
purchaser  without  notice. ^^ 

One  claiming  as  a  purchaser  for  value  without 
notice  has,  in  the  majority  of  jurisdictions,  the  burden 
of  proving  the  paj^ment  of  a  valuable  consideration,  this 
being  regarded  as  a  matter  peculiarly  within  his  knowl- 
edge.^^    In  some  states,  however,  a  contrary  view  has 


E.  377  (in  suit  in  equity); 
Citizens'  Bank  v.  Julian,  153 
Jnd.  655,  55  N.  E.  1007;  Hoskins 
V.  Carter,  66  Iowa,  638,  24  N. 
W.  249;  Butler  v.  Stevens,  26 
Me.  484;  Shotwell  v.  Harrison, 
22  Mich.  410;  Sheldon  v.  Powell, 
31  Mont.  249,  107  Am.  St.  Rep. 
429,  78  Pac.  491;  McGrath  v. 
Norcross,  78  N.  J.  Eq.  120,  79 
Atl.  85,  82  N.  J.  Eq.  367.  91  Atl. 
1069;  Brown  v.  Volkenning,  64 
N.  Y.  76;  Advance  Thresher  Co. 
V.  Esteb,  41  Ore.  469,  69  Pac. 
447;  Wilkins  v.  McCorkle,  112 
Tenn.  688,  80  S.  W.  834;  Daly 
V.  Rizzutto,  59  Wash.  62,  29  L. 
R.  A.  (N.  S.)  467,  109  Pac.  276; 
South  Penn.  Oil  Co.  v.  Blue 
Creek  Development  Co.,  77  W. 
Va.  682,  88  S.  E.  1029;  01m- 
stead  v.  McCrory,  158  Wis.  323, 
148  N.  W.  871. 
13.     See    Boggs    v.    Warner,    6 


Watts.    &    S.    (Pa.)    439;    Hoyt    v. 
Jones,   31   Wis.   389. 

14.  Bush  V.  Golden,  17  Conn. 
594;  Rogers  v.  Wiley,  14  111. 
C5,  56  Am.  Dec.  491;  Holmes  v. 
Stout,  10  N.  J.  Eq.  419;  Brown 
V.  Volkenning,  64  N.  Y.  76 
(semble) ;  Kimball  v.  Houston 
Oil  Co.,  100  Tex.  336,  99  S.  W. 
852;  Vest  v.  Michie,  31  Gratt. 
(Va.)  149,  31  Am.  Rep.  722; 
Sheffey  v.  Bank  of  Lewisburg, 
33   Fed.   315. 

In  Advance  Thresher  Co.  v. 
Esteb,  41  Ore.  469,  69  Pac.  447, 
the  burden  is  regarded  as  rest- 
ing on  the  claimant  under  the 
unrecorded  conveyance,  apparent- 
ly on  the  theory  that  he  has 
merely  an  equitable   title. 

15.  Biggs  V.  Hoffman,  60 
Wash.    495,    111    Pac.    576. 

16.  Lake  v.  Hancock,  38  Fla. 
53,    56    Am.    St.   Rep.    159,    20    So. 


§  578] 


Priorities  and  Eecording. 


2265 


been  asserted  as  regards  a  purchaser  claiming  as  against 
a  prior  unrecorded  conveyance/'  especially  when  tho 
later  conveyance  recites  the  payment  of  a  substantial 
consideration.^^  And  in  one  state,  apparently,  one  as- 
serting an  equity  as  against  a  subsequent  purchaser  has 
the  burden  of  showing  the  non  payment  by  the  latter 
of  a  valuable  consideration.^''  But  even  though  A, 
claiming  as  against  a  prior  unrecorded  conveyance  by 
the  same  grantor,  may  reasonably  be  subjected  to  the 
burden  of  proving  his  payment  of  a  valuable  considera- 
tion, it  does  not  seem  that  one  claiming  under  A  should 
be  subjected  to  a  like  burden  of  proving  such  pay- 
ment by  A,  it  not  being  a  matter  peculiarly  within  his 
knowledge,  as  it  is  within  A's  knowledge. 

By  the  weight  of  authority,  the  subsequent  pur- 
chaser does  not  satisfy  the  requirement  that  he  show 
pa^aiient  of  a  valuable  consideration  by  showing  a 
recital  to  that  effect  in  his  conveyance,  such  a  declara- 
tion not  being  regarded  as  sufficient  to  affect  the  rights 


811;  McGuire  v.  Gilbert,  270  111. 
160,  110  N.  E.  377;  Roseman  v. 
Miller,  84  111.  297;  Kruse  v. 
Conklin,  82  Kan.  358,  36  L.  R. 
A.  (N.  S.)  1124,  108  Pac.  856; 
Perkins  v.  Gregory,  87  Kan..  303, 
124  Pac.  168;  Shotwell  v.  Har- 
rison, 22  Mich.  410;  Lloyd  v. 
Simons,  90  Minn.  237.  95  N.  W. 
003;  American  Exchange  Nat. 
Bank  v.  Fockler,  49  Neb.  713, 
68  N.  W.  1039;  King  v.  Mc- 
Rackan,  168  N.  C.  621,  84  S.  E. 
1027,  171  N.  C.  752,  88  S.  E. 
226;  Morris  v.  Daniels,  35  Ohio 
St.  406;  Weber  v.  Rothchild,  15 
Ore.  385,  3  Am.  St.  Rep.  162,  15 
Pac.  650;  Union  Canal  Co.  v. 
Young,  1  Whart.  (Pa.)  410,  30 
Am.  Dec.  212;  Lloyd  v.  Lynch, 
28  Pa.  419;  Bugg  v.  Seay,  107 
Va.  648,  122  Am.  St.  Rep.  877, 
60  S.  E.  89;  Harvey  v.  Mutter, 
66   W.   Va.   208. 


17.  Gratz  v.  Land  &  River 
Imp.  Co.,  27  C.  C.  A.  305,  82 
Fed.  381,  40  L.  R.  A.  393:  Kim- 
ball V.  Houston  Oil  Co.,  100  Tex. 
336,  99  S.  W.  852;  Hoyt  v.  Jones, 
31   Wis.   389. 

18.  Ryder  v.  Rush.  102  111. 
338;  Hiller  v.  Jones,  66  Miss. 
646,  6  So.  465;  Harrison  v. 
Moore,  —  Mo.  — ,  199  S.  W.  188; 
Mullins  V.  Butte  Hardware  Co., 
25  Mont.  525,  87  Am.  St.  Rep. 
430,  65  Pac.  1004;  Jackson  v. 
McChesney,  7  Cow.  (N.  Y.)  360; 
Wood  v.  Chapin.  13  N.  Y.  509, 
C7  Am.  Dec.  62;  Lacustrine 
Fertilizer  Co.  v.  Lake  Guano 
&  Fertilizer  Co.,  82  N.  Y.  476. 
See  McConnell  v.  Citizens'  State 
Bank,  130  Ind.  127,  27  N.  E. 
616. 

19.  Teagarden  v.  R.  H,  dodley 
Lumber  Co.,  105  Tex.  616.  154 
S     W.    973;    Kenedy    Pasture   Co. 


226G 


Keal  Propeety. 


[§  578 


of  third  persons.-"  But,  as  above  indicated,  a  different 
view  has  in  some  states  been  asserted  in  reference  to 
a  purchaser  claiming  as  against  a  prior  unrecorded 
conveyance.-^ 

It  is  not  infrequent!}'  stated  that  upon  proof  by  the 
subsequent  purchaser  of  payment  by  him  of  a  valuable 
consideration,  the  burden  of  proof  shifts  to  the  prior 
claimant  to  show  notice  to  the  purchaser.-^  The  state- 
ment referred  to  in  effect  regards  tb.^  burden  of  pro- 
ducing evidence  both  of  payment  of  value  and  lack  of 


V.    State,    —    Tex.    Civ.    App.    — , 
196    S.    W.    287. 

20.  Langley  v.  Pulliam,  162 
Ala.  142,  50  So.  365;  Galland 
V.  Jackman,  26  Cal.  79,  85  Am. 
Dec.  172;  Black  Eagle  Oil  Co. 
-I.  Belcher,  22  Cal.  App.  258,  133 
Pac.  1153;  Lake  v.  Hancock,  38 
Fla.  53,  56  Am.  St.  Rep  159,  20 
So.  811;  Roseman  v.  Miller,  84 
HI.  299;  SiUyman  v.  King,  36 
Iowa,  207;  Minneapolis  &  St.  L. 
R.  R.  V.  Chicago,  M.  &  St.  P. 
R.  R.,  116  Iowa,  681,  88  N.  W. 
1082;  King  v.  Mead,  60  Kan.  539, 
57  Pac.  113;  Shotwell  v.  Harrison, 
22  Mich.  410;  Bishop  v.  Schneider, 
46  Mo.  472,  2  Am.  Rep.  533; 
Ranney  v.  Hardy,  43  Ohio  St. 
157;  Adams  Oil  &  Gas  Co.  v. 
Hudson,  55  Okla.  386,  155  Pac. 
220;  Richards  v.  Snyder,  11  Ore. 
501,  6  Pac.  186;  Lloyd  v.  Lynch, 
28  Pa.  419,  70  Am.  Dec.  137; 
Davidson  v.  Ryle,  103  Tex.  216, 
124  S.  W.  616  (but  recital  may 
be  considered);  Bugg  v.  Seay, 
107  Va.  648,  122  Am.  St.  Rep. 
877,  60  S.  E.  89;  Johnson  v. 
Georgia,  L.  &  T.  Co.,  72  C.  C. 
A.    639,    141    Fed.    593. 

21.  Ante,  this  section,  note 
18. 

22.  Barton  v.  Barton,  75  Ala. 
400;    Coskrey   v.   Smith,    126   Ala. 


120,  28  So.  11;  Kendrick  v. 
Colyar,  143  Ala.  597,  42  So.  110; 
Osceola  Land  Co.  v.  Chicago 
Mill  &  Lumber  Co.,  84  Ark.  1, 
103  S.  W.  609;  Williams  v. 
Smith,  128  Ga.  306,  57  S.  E. 
801;  Walter  v.  Brown,  115  Iowa, 
360,  88  N.  W.  832;  Kruse  v. 
Conklin,  82  Kan.  358,  36  L.  R. 
A.  (N.  S.)  1124,  108  Pac.  856; 
Hooper  v.  De  Vries,  115  Mich. 
231,  73  N.  W.  132;  Wright  v. 
Larson,  51  Minn.  321,  38  Am. 
St.  Rep.  504,  53  N.  W.  712; 
Ward  v.  Ishill,  73  Hun  (N.  Y.) 
550,  26  N.  Y.  Supp.  141  {sem- 
bJe) ;  Morris  v.  Daniels,  35  Ohio 
St.  406;  Varwig  v.  Cleveland,  C. 
C.  &  St.  L.  R.  Co.,  54  Ohio  St. 
455,  44  N.  E.  92.  See  Wood  v. 
Chapin,  13  N.  Y.  509,  523,  67 
Am.  Dec.  62;  Lacustrine  Ferti- 
lizer Co.  v.  Lake  Guano  &  Fer- 
tilizer Co.,  82  N.  Y.  476;  Smith 
V.  Pure  Strains  Farm  Co.,  180 
N.  Y.  App.  Div.  703,  167  N.  Y. 
Supp  877;  Atkinson  v.  Greaves, 
70  Miss.  42,  11  So.  688;  Adams 
Oil  &  Gas  Co.  V.  Hudson,  55 
Ckla.  386,  155  Pac.  220;  Daly 
V.  Rizzutto,  59  Wash.  62,  29  L. 
R.  A.  (N.  S.)  467,  109  Pac. 
276. 

"For   it   is   not   consistent   with 
the  ordinary  conduct  of  men,  who 


§  579]  Priorities  and  Recordixg.  2267 

notice  as  in  the  first  place  upon  the  subsequent  pur- 
chaser, who  may,  however,  by  intioducing  evidence  of 
payment  of  value,  shift  to  the  prior  claimant  the  burden 
of  introducing  evidence  to  show  the  existence  of  notice. 
This  does  not,  however,  affect  the  burden  of  convincing 
the  jur}^,  by  a  preponderance  of  evidence,  that  the 
purchase  was  not  only  for  value  but  that  it  was  also 
without  notice.  The  burden  in  this  regard  remains,  as 
it  was  at  the  commencement  of  the  action,  upon  the 
subsequent  purchaser.^^ 

§  579.  Lis  pendens.  The  doctrine  of  lis  pendens 
by  which  one  purchasing  land  from  a  party  to  a  pending 
litigation  concerning  such  land  takes  subject  to  the  re- 
sults of  such  litigation,  is  properly  based,  it  would  seem, 
not  on  the  theory  that  such  purchoser  has  notice  of  the 
adverse  claim,  but  rather  on  the  principle  that,  pending 
the  litigation,  a  party  thereto  cannot  transfer  his  rights 
in  the  land  to  others,  so  as  to  prejudice  another  ])arty 
to  the  litigation,  since  otherwise  the  decision  might  be 
utterly  ineffectual.^*  The  courts,  however,  frequently 
refer  to  the  doctrine  as  constituting  a  branch  of  the  law 
of  notice,  a  pending  litigation  being  said  to  be  notice  to 
purchasers  from  parties  thereto,  and  this  is,  in  most 

must    be    supposed    to    act    with  13  Am.  St.  Rep.  258,  21  Pac.  710; 

reference   to   their   own   interests,  Norris    v.    He,    152    111.    190,    43 

that  valuable  consideration  should  Am.   St.   Rep.   233,   38   N.   E.   762; 

be     paid     for     that     which     the  Watson  v.  Wilson,  2  Dana    (Ky.) 

purchaser  knows  does  not  belong  406,    26    Am.    Dec.    459;     Turner 

to   the   seller."    Stayton,   C.   J.,   in  v.    Houpt,    53    N.    J.    Eq.    526,    33 

Rogers  v.  Pettus,  80  Tex.  425,  15  Atl.    28;    Lamont   v.    Cheshire,   65 

S.    W.    1093.  N.    Y.    30;    Arrington    v.    Arring- 

23.  See  Errett  v.  Wheeler,  109  ton,  114  N.  C.  151,  19  S.  E.  351; 
Minn.  157,  26  L.  R.  A.  (N.  S.)  Baker  v.  Leavitt,  54  Okla.  70, 
816,  123  N.  W.  414;  Dundee  153  Pac.  1099;  Dovey's  Appeal, 
Refclty  Co.  v.  Leavitt,  87  Neb.  97  Pa.  St.  153;  Newman  v.  Chap- 
711,  30  L.  R.  A.  (N.  S.)  389,  127  man,  2  Rand.  (Va.)  93,  14  Am. 
N.    W.    1057.  Dec.     776;     Linn     v.     Collins,     77 

24.  Bellamy  v.  Sabine,  1  De  W.  Va.  592,  Ann.  Cas.  1918C,  86, 
Gex  &  J.  566;  Cherry  v.  Dicker-  87  S.  E.  934.  See  2  Pomeroy 
son,  128  Ark.  572,  194  S.  W.  690;  Eq.  .Tur.  §  632;  editorial  note 
Cheever  v.   Minton,    12   Colo.    557,  20    Harv.    Law    Rev.    488. 


2268 


Real  Property. 


[§  579 


cases,  the  result  of  the  doctrine.  Consequently  it  is 
not  improper  to  refer  to  the  doctrine  in  connection  with 
the  law  of  notice. 

The  doctrine  of  lis  pendens  is  sometimes  spoken  of 
as  being  peculiarly  applicable  to  equitable  proceedings, 
on  the  ground  that,  in  the  case  of  a  legal  action,  a  pur- 
chaser pending  the  litigation  can  take  only  the  title  of 
his  vendor,  irrespective  of  notice;  but  this  latter  state- 
ment in  regard  to  legal  actions  sees  to  involve  but 
another  statement  of  the  doctrine  of  lis  pendens,  and  the 
doctrine  is  regularly  applied  in  the  case  of  proceedings 
concerning  land  at  law,  as  well  as  in  equity.^^  Applica- 
tions of  the  doctrine  accordingly  occur  in  connection 
with  actions  of  ejectment,^^  as  well  as  in  connection  with 
equitable  proceedings,  such  as  suits  to  foreclose  a  mort- 
gage or  enforce  any  other  lien,^^  to  establish  a  trust  in 
land,^^  to  set  aside  a  conveyance,^^  or  for  partition.^° 


25.  See  2  Pomeroy,  Eq.  Jur. 
§  633;  Tilton  v.  Cofield,  93  U. 
S.  163,  23  L.  Ed.  858;  Cheever 
V.  Minton,  12  Colo.  557,  13  Am. 
St.  Rep.  258,  21  Pac.  710;  Norris 
V  He,  152  111.  190,  43  Am.  St. 
Rep.  233,  38  N.  E.  762;  Smith 
V.  Hodson,  78  Me.  180,  3  Atl. 
276;  Mcllwrath  v.  Hollander,  73 
Mo.  105,  39  Am.  Rep.  484;  La- 
ment V.  Cheshire,  65  N.  Y.  30; 
Rollins  V.  Henry,  78  N.  C.  342; 
Houston  V.  Timmerman,  17  Ore. 
499,  4  L.  R.  A.  716,  11  Am.  St. 
Rep.  848,  21  Pac.  1037;  Metcalfe 
V.  Pulvertoft,  2  Ves.  &  B.  200. 

26.  Walden  v.  Bodley,  9  How. 
(U.  S.)  34,  13  L.  Ed.  36; 
Wetherbee  v.  Dunn,  36  Cal.  147, 
95  Am.  Dec.  166;  Elizabethport 
Cordage  Co.  v.  Whitlock,  37  Fla. 
190;  Glanz  v.  Ziabek,  233  111.  22, 
84  N.  E.  36;  Smith  v.  Hodsdon, 
78  Me.  180,  3  Atl.  276;  RoUins 
V.  Henry,  78  N.  C.  342;  Snively 
V.    Hitechew.   57    Pa.    St.   49. 


27.  Owen  v.  Kilpatrick,  96  Ala. 
421;  Burleson  v.  McDermott,  57 
Ark.  229,  21  S.  W.  222;  Norris 
V  He,  152  111.  190,  43  Am.  St. 
Rep.  233,  38  N.  E.  762;  O'Brien 
V.  Putney,  55  Iowa,  292,  7  N. 
W.  615;  Bell  v.  Diesem,  86  Kan. 
364,  121  Pac.  335;  Rosenheim  v. 
Hartsock,  90  Mo.  357,  2  S.  W. 
473. 

28.  Walker  v.  Elledge,  65  Ala. 
51;  Pratt  v.  Hoag,  5  Duer  (N. 
Y.)    631. 

29.  Mellen  v.  Moline  Malleable 
Iron  Works.  131  U.  S.  352,  33 
L.  Ed.  178;  Evans  v.  Welch,  63 
Ala.  250;  Lenders  v.  Thomas,  35 
Fla.  518,  48  Am.  St.  Rep.  255, 
17  So.  633;  Watson  v.  Wilson,  2 
Dana  (Ky.)  406,  26  Am.  Dec. 
459;  Cossett  v.  O'Ri'.ey.  160 
Mich.  101,  125  N.  W.  39;  Jack- 
son V.  Andrews,  7  Wend.  (N. 
Y.)    152,    22    Am.    Dec.    574. 

30.  Skvor  V.  Weis,  153  Iowa, 
720,     134     N.     W.     85;     Hale     v. 


§  579]  Priorities  and  Recording.  2269 

In  most- jurisdictions,  apart  from  statute,  a  pro- 
ceeding is  pending  for  the  purpose  of  this  doctrine,  only 
when  the  original  pleading  in  the  suit,  that  is,  the  dec- 
laration, bill,  complaint,  or  petition,  as  the  case  may 
be,  has  been  filed,  and  the  defendant  whose  interest  is 
sought  to  be  acquired  has  been  served  with  process."'^ 
But  by  statute  in  many  of  the  states  the  original  uoe- 
trine  of  lis  pendens  has  been  modified  by  statutory  pro- 
visions requiring  a  notice  of  lis  pendens  to  be  register- 
ed or  recorded  in  some  particular  mode,  in  order  that  a 
purchaser  for  value  and  without  actual  notice  may  be 
charged  with  notice  of  the  litigation.^^ 

The  doctrine  of  lis  pendens  applies  not  only  in 
favor  of  a  plaintiff  as  against  a  transferee  of  a  defend- 
ant, but  also  in  favor  of  a  defendant  as  against  a  trans- 
feree of  a  plaintiff,  though  its  application  is  naturally 
called  for  much  less  frequently  in  the  latter  case.  The 
lis  pendens  in  favor  of  a  defendant  would  seem  properly 
to  commence,  in  the  absence  of  a  statute  requiring  the 
defendant  to  file  a  notice,  at  the  same  time  as  that  in 
favor  of  a  plaintitf,  that  is,  so  soon  as  the  plaintiff's 

Ritchie,    142    Ky.    424,    134    S.    W.  509,    36    L.    Ed.    521;     Zeigler    v. 

474.  Daniel,    128   Ark.    403,    194    S.    W. 

31.  See  Banks  v.  Thompson,  246;  Bensley  v.  Mountain  Lake 
75  Ala.  531;  Majors  v.  Cowell,  Water  Co.,  13  Cal.  306,  73  Am 
51  Cal.  478;  Norris  v.  He,  152  Dec.  575;  Tripp's  Adm'r  v.  Bailey, 
111.  190,  43  Am.  St.  Rep.  233;  152  Ky.  369,  153  S.  W.  452;  Alter- 
Allen  V.  Poole,  54  Miss.  323;  auge  v.  Christiansen,  48  Mich.  60, 
Jackson  v.  Dickenson,  15  Johns.  11  N.  W.  806;  Jorgenson  v. 
(N.  Y.)  309,  8  Am.  Dec.  236;  Minneapolis  &  St.  L.  Ry.  Co.,  25 
Barry  v.  Hovey,  30  Ohio  St.  Minn.  206:  Wood  v.  Price, 
344;  Shufeldt  v.  Jefcoat,  50  Okla.  79  N.  J.  Eq.  620,  38  L.  R.  A. 
790,  151  Pac.  595;  Diamond  v.  (N.  S.)  772,  Ann.  Cas.  1913 A. 
Lawrence  County,  37  Pa.  St.  35:i;  I^^IO,  81  Atl.  983;  Sheridan  v. 
Staples  V.  White,  Handley  &  Co.,  Andrews,  49  N.  Y.  478;  Todd  v. 
88  Tenn.  30,  12  S.  W.  339;  Han-  Outlaw,  79  N.  C.  235;  Spragiie 
rick  V.  Gurley,  93  Tex.  458.  54  v.  Stevens,  37  R.  I.  1,  91  Atl. 
S.  W.  347,  55  S.  W.  119.  56  S.  4.!;  Vicars  v.  Sayler,  111  Va. 
W.    330.  307,    68    S.     E.     988;     Phillips     v. 

32.  2  Pomeroy,  Eq.  Jur.  §  640.  Tompson,  73  Wash.  78,  Ann.  Cas. 
See    Smith    v.    Gale,    144    U.     S  1914D,   672,    131    Pac.    461. 

2  R.  P.— 68 


2270 


Eeal  Propeety. 


[§  570 


original  pleading  has  been  filed,  and  defendant  has 
been  served  with  process,^-^  except  in  so  far,  perhaps, 
as  a  right  to  affirmative  relief  may  be  asserted  by  de- 
fendant in  his  answer  or  cross  complaint.^* 

A  purchaser  is  affected  by  a  lis  pendens  only  if  the 
land  in  litigation  is  described  in  the  pleadings  with 
such  reasonable  certainty  as  to  enable  the  purchaser 
to  know  that  it  is  the  land  which  he  is  proposing  to 
purchase. ^^ 

The  doctrine  of  lis  pendens  applies,  not  only  against 
a  person  who  acquired  the  property  in  litigation  from  a 
party  thereto  by  voluntary  conveyance,  but  also  against 
one  who  acquires  the  interest  of  such  a  party  by 
judicial''"  or  execution^"  sale.  It  does  not  apply  as 
against  one  who,  pending  the  litigation,  acquires  the 
interest  or  supposed  interest  of  one  who  is  not  a  party 


33.  Stein  v.  McGratb.  128  Ala. 
175,  30  So.  792;  Welton  v.  Cook, 
61  Cal.  481;  Hurd  v.  Case,  32 
111.  45;  Olson  v.  Leibpke,  110 
Iowa,  594,  80  Am.  St.  Rep.  327, 
81  N.  W.  801;  S.  C.  HaU  Lum- 
ber Co.  V.  Gustin,  54  Mich.  624 
20  N.  W.  616;  Jorgenson  v. 
Minneapolis  &  St.  L.  Ry.  Co.,  25 
Minn.  206;  Bailey  v.  McGinnis, 
57  Mo.  362;  Moss  v.  N.  Y.  Ele- 
vated Ry.  Co.,  27  Abb.  N.  C.  318; 
Zane   v.    Fink,    18    W.    Va.    693. 

34.  Bridget  v.  Exchange  Bank, 
126  Ga.  821,  56  S.  E.  95;  Mc- 
Guire  v.  Gilbert,  270  111.  160. 
110  N.  E.  377;  Hart  v.  Hayden, 
79  Ky.  348;  Garver  v.  Graham, 
6  Kan.  App.  344,  51  Pac.  344; 
Compare,  S.  C.  Hall  Lumber  Co. 
V.  Gustin,  54  Mich.  624,  20  N. 
W.  616,  and  see  7  Columbia  Law 
Rev.  p.  282;  Mullanphy  Sav. 
Bank  v.  Schott,  135  lU.  655,  25 
Am.    St.   Rep.    401.    26   N.   E.    640. 

35.  Miller  v.  Sherry,  2  Wall 
(U.     S.)     237,     17     L.     Ed.     827; 


Mitchell  V.  Amador  Canal  & 
Mining  Co.,  75  Cal.  464,  17  Pac. 
246:  Norris  v.  He,  152  111.  190, 
43  Am.  St.  Rep.  233,  38  N.  E. 
762;  Boyd  v.  Emmons'  Adm'r, 
103  Ky.  393,  45  S.  W.  364; 
Allan  v.  Poole,  54  Miss.  323; 
Griffith  V.  Griffith,  9  Paige  (N. 
Y.)  317;  Todd  v.  Outlaw,  79  N. 
C.  235;  McWhorter  v.  Brady,  41 
Okla.  383,  140  Pac.  782;  Lewis 
V.  Mew,  1  Strob.  Eq.  (S.  C.) 
180;  Boshear  v.  Lay,  6  Heisk. 
(Tenn.)  163;  Seibel  v.  Bath,  5 
Wyo.   409,   40   Pac.   756. 

.^.6.  Randall  v.  Duff,  79  Cal. 
115,  3  L.  R.  A.  754,  756,  21  Pac. 
610;  Randall  v.  Lower,  98  Ind. 
255;  Rider  v.  Kelsey,  53  Iowa, 
367.    5    N.    W.    509. 

37.  Brinkley  v.  Sanford.  99 
Ga.  130,  25  S.  E.  32;  Ellis  v. 
Sisson,  96  111.  105;  Gibbs  v. 
Davis,  93  Ky.  466,  20  S.  W.  385; 
Ettenborough  v.  Bishop,  26  N.  J. 
Eq.    262. 


§  579] 


Peioeities  and  Eecoedixg. 


2271 


thereto.'"^^  It  applies,  it  has  been  decided,  as  against 
one  acquiring  a  judgment  lien  upon  the  property  of  a 
party  to  the  pending  litigation.^^ 

A  suit  pending  in  one  county  which  affects  land 
lying  in  another  county  of  the  same  state  has  been 
regarded  as  binding  on  a  purchaser  from  a  party  there- 
to,^ ^  and  a  suit  pending  in  a  federal  court  would  seem 
to  affect  a  purchaser  of  land  lying  anywhere  in  the 
same  district.^  ^  The  full  faith  and  credit  clause  of  the 
Federal  Constitution  has  been  held,  however,  not  to  re- 
quire the  court  of  one  state  to  subject  a  purchaser  of 
land  hdng  therein  to  the  results  of  litigation  in  a  court 
of  another  state.^^ 

There  is  a  conflict  in  the  decisions  as  to  whether  a 
suit  to  assert  a  conveyance  or  enforce  an  incumbrance, 


38.  Miner  v.  Sherry,  2  Wall. 
(U.  S.)  237,  17  L.  Ed.  827; 
Scarlett  v.  Gorham,  28  111.  319; 
Parsons  v.  Hoyt,  24  Iowa,  154; 
Harrod  v.  Burke,  76  Kan.  909, 
92  Pac.  1128;  Herrington  v. 
Herrington,  27  Mo.  560;  Merrill 
V.  Wright,  65  Neb.  794,  101  Am. 
St.  Rep.  645,  91  N.  W.  697; 
Allen  V.  Morris,  34  N.  J.  Eq. 
159;  Parks  v.  Jackson,  11  Wend. 
(N.  Y.)  442,  25  Am.  Dec.  656; 
Green  v.  Rick,  121  Pa.  St.  130, 
2  L.  R.  A.  48,  6  Am.  St.  Rep. 
760,  15  Atl.  497;  Johnson  v.  Ir- 
win,  16    Wash.    652,   48    Pac.   345. 

39.  Stout  V.  Lye,  103  U.  S. 
66,  26  L.  Ed.  428;  Cooney  v. 
Coppock,  119  Iowa,  486,  93  N. 
W.  495;  Newdigate  v.  Jacobs,  9 
Dana  (Ky.)  17;  Fuller  v.  Scrib- 
ner,  76  N.  Y.  190;  Stewart  v. 
Wheeling  &  L.  E.  Ry.  Co.,  5:3 
Ohio  St.  151,  29  L.  R.  A.  438,  41 
N.  E.  247;  Cradlebaugh  v. 
Pritchett,  8  Ohio  St.  647,  72  Am. 
Dec.  610;  Winchester  v.  Paine, 
11    Ves.    Jr.    194;     Trye    v.    Aid- 


borough,  1  Ir.  Ch.  666. 

40.  Marshall  v.  Whitley,  136 
Ga.  805,  72  S.  E.  244;  Wick- 
liffe's  Ex'r  v.  Breckenridge's 
Heirs,  1  Bush  (Ky.)  427.  And 
see  Carr  v.  Lewis  Coal  Co.,  96 
Mo.  149,  9  Am.  St.  Rep.  328,  8 
S.  W.  907.  But  a  contrary  view 
is  expressed  in  Benton  v.  Shafer, 
47  Ohio  St.  117,  7  L.  R.  A.  812. 
24    N.    E.    197. 

41.  Rutherglen  v.  Wolf,  1 
Hughes  78,  Fed.  Cas.  No.  12,175; 
Atlas  Ry.  Supply  Co.  v.  Lake 
&  River  Ry.  Co.,  134  Fed.  503; 
Wilson  V.  Hefflin,  81  Ind.  35; 
Stewart  v.  Wheeling  &  L.  E.  Ry. 
Co.,  53  Ohio  St.  151,  29  L.  R.  A. 
438,    41    N.    E.    247. 

42.  Shelton  v.  Johnson,  4 
Sneed  (Tenn.)  672;  Carr  v.  Lewis 
Coal  Co.,  96  Mo.  149,  9  Am.  St. 
Rep.  328,  8  S.  W.  907  (dictum). 
And  see  Holbrook  v.  New  Jersey 
Zinc  Co.  57  N.  Y.  616.  Contra, 
Fletcher  v.  Ferrell,  9  Dana  (Ky.) 
372. 


2272 


Eeal  Pkoperty. 


[§  579 


such  as  a  mortgage,  which  has  not  been  recorded,  is 
sufficient  to  make  a  purchaser  of  the  land  pending  the 
litigation  a  purchaser  with  notice,  so  as  to  render  the 
unrecorded  instrument  effective  as  against  him.'*^ 


43.  That  it  does  have  svch 
effect,  see  Boiling  v.  Carter,  9 
Ala.  921;  Thorns  v.  Southard,  2 
Dana  (Ky.)  475.  That  it  does 
not,    see    Newman    v.    Chapman, 


2  Rand.  (Va.)  93,  14  Am.  Dec. 
766;  Douglass  v.  McCrackin,  52 
Ga.  596.  See,  also,  McCutchen 
V.  Miller,  31  Miss.  65,  85;  Page 
V.   Street,   Speers   Eq.   159,   212. 


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